^ 


.N* 


A  WORLD  COURT 


IN  THE  LIGHT  OF 


THE  UNITED  STATES  SUPREME  COURT 


WORKS   BY   THE  AUTHOR. 

Some  facts  about  Alsace  and  Lorraine,  1895. 

The    Brooke    Family   of   Whitchurch,    Hampshire,    England, 

together  with  an  account  of  Acting-Governor  Robert  Brooke 

of  Mar>'land  and  Colonel  Ninian  Beall  of  Maryland,  1899. 
The  Alabama  Arbitration,  1900. 
fimeric  Cruc(5,  1900. 
The  Alasko-Canadian  Frontier,  1902. 
The  Alaska  Frontier,  1903. 
The  English  Ancestors  of  the  Shippens  and  Edward  Shippen 

of  Philadelphia,  1904. 
The  Swift  Family  of  Philadelphia,  1906. 
Balch  Genealogica,  1907. 

L'fivolution  de  I'Arbitragc  International,  1908. 
La  Baie  d'Hudson,  est  elle  une  mer  libre  ou  une  mer  ferm^ 

1911  ? 
La  Baie  d'Hudson  est  une  grande  mer  ouverte,  19 13. 
Diffcrends    juridiques    et    politiques    dans    les    rapports  des 

Nations,  1914. 
"Arbitration"  as  a  term  of  International  Law,  1915. 
The  Influence  of  the  United  States  on  the  Development  of  the 

Law  between  Nations,  19 15. 
Legal  and  Political  International  Questions  and  the  Recurrence 

of  War,  1916. 
The  Philadelphia  Assemblies,  19 16. 


A  WORLD  COURT 


IN  THE  LIGHT  OF 


THE  UNITED  STATES  SUPREME  COURT 


THOMAS  WILLING  BALCH 

L.  H.  D.,  Trinity  College 

Member  of  the  Philadelphia  Bar 

A  Vice-President  of  the  Historical  Society  of  Pennsylvania 


Philadelphia 

ALLEN,   LANE   AND   SCOTT 
1918 


•  o"^ 


Copyright.  1918,  by 

/I.  1        J' 
C'f/.jL-*       '     THOMAS  WILLING  BALCH 


^p 


TO 
MY    MOTHER 


372971 


INTRODUCTION. 

HUMANITY  has  long  sought  to  ward  off  the 
ravages  and  burdens  that  resiolt  from  war. 
The  lake  dwellers  of  Switzerland  tried  to  protect 
themselves  against  the  attack  of  strangers  by  build- 
ing their  dwellings  above  the  water  on  piles  far  from 
the  shore.  The  Romans,  at  the  height  of  their 
prosperity,  built  a  line  of  fortifications,  Limes 
Imperii  Romani,  from  the  Rhine  to  the  Danube. 
Those  fortifications,  inside  of  which  were  the  medici- 
nal springs  of  the  Taunus  region,  served  against  the 
barbarians  of  the  north  as  the  connecting  link 
between  those  two  rivers  that  were  the  northern 
boulevards  on  the  continent  of  Europe  of  the  Roman 
Empire.  The  Chinese  Empire  built  a  long  wall  ex- 
tending from  the  sea  inland,  for  hundreds  and  hun- 
dreds of  miles,  to  keep  out  the  barbarians  of  the 
north  of  Asia.  The  feudal  barons  of  Europe,  as  for 
instance  the  lords  of  Coucy-le-Chateau  or  Pierre- 
fonds  in  northern  France,  built  great  castles,  whose 
strong  walls  and  high  towers  afforded  them  and 
their  retainers  and  peasants  protection  against 
unexpected  attack,  and  also  allowed  them  to  levy- 
tribute  upon  the  surrounding  lands  and  any  mer- 


2  A    WORLD    COURT    IN    THE    LIGHT    OF 

chants  that  ventured  within  their  territory.     The 
burghers  of  the  Middle  Ages  surrounded  their  cities 
with  great  walls  and  moats,  such  as  those  around  the 
cities  of  Numberg  in  Germany  and  Aiguesmortes 
in  southern  France,  to  protect  their  lives  and  prop- 
erty against  attack  and  to  hold  guard  upon  the 
surrounding  fields  from  where  they  drew  their  food. 
More    recently,    Nations    have    built   forts    about 
their  frontier   towns   to   check  the  advance   of   a 
hostile  army;    and   in  one  notable  case  at  least, 
the  northeastern  front  of  France,  the  whole  of  one 
frontier  was  literally  fortified  with  a  chain  of  forts 
to  aid  in  repelling  invasion.     Nations  have  built 
great  fleets  of  war  vessels.    Thus  Venice,  the  United 
Netherlands,   and  England  have  built  and  main- 
tained great  fleets  for  the  double  purpose  of  wardmg 
attack  from  and  of  safeguarding  the  commerce  of 
their  respective  countries,  and  in  the  case  of  Great 
Britain  of  assuring  in  addition  the  food  supply  of  the 
Nation.     And  now  the  Nations  have  constructed 
great  fleets  of  serial  war  crafts  as  an  adjunct  to  their 
military  establishments  on  land  and  sea  for  purposes 
of  attack  and  defense. 

In  each  of  these  cases  the  main  object  was  the 
same;  to  afford  both  a  safeguard  against  attack  and 
invasion  of  the  home,  whether  that  home  was  a 


THE    UNITED    STATES    SUPREME    COURT.  i 

small  wooden  house  built  above  a  lake,  a  strong 
stone  castle,  a  prosperous  city,  or  the  land  of  a 
great  Nation;  and  also  often  at  the  same  time  a 
safe  vantage  point  from  which,  combined  with  the 
requisite  mobility,  the  inhabitants  could  sally  forth 
to  attack  strangers  to  seize  upon  their  wealth. 

Within  the  last  half  century,  however,  humanity 
has  turned  its  attention  seriously  to  developing  an 
additional  way  of  warding  off  war.  Ever  since  the 
judicial  settlement  of  the  Alabama  Claims  by  the 
Geneva  Tribunal  in  1872,  both  governments  and 
peoples  have  sought  more  and  more  to  perfect  the 
international  judicial  machinery  by  which,  for  the 
settlement  of  differences  arising  between  Nations, 
they  woiild  call  to  their  aid  jural  customs  and  rules 
interpreted  by  International  Courts  of  Justice  set 
up  ad  hoc.  As  a  residt  of  the  call  in  1898  of  the 
Emperor  Nicholas  the  Second,  for  the  meeting  of 
the  First  Hague  Peace  Conference  in  1899,  new 
impetus  was  given  to  the  efforts  to  avoid  war 
between  the  Nations  by  a  resort  to  legal  means. 
In  the  first  place,  provision  was  made  in  the  legis- 
lation enacted  by  that  Conference,  in  which  twenty- 
six  of  the  Nations  of  the  world  took  part,  to  facilitate 
the  use  of  good  offices  and  mediation  as  means  to 
smooth    over    the    difficulties    that    arise    between 


4  A    WORLD   COURT    IN   THE    LIGHT   OP 

Nations  and  which  they  fail  to  settle  by  ordinary 
diplomatic  intercourse.  In  addition,  however,  the 
Conference  of  1899  made  provisions  to  facilitate  the 
establishment  ad  hoc  of  International  Courts  of 
Justice,  such  as  the  Geneva  Tribunal  of  1871-72 
that  judged  the  Alabama  Claims,  and  the  Paris 
Tribunal  of  1893  that  decided  the  Bering  Sea  Fur 
Seal  fisheries,  to  judge  causes  of  difference  arising 
between  the  Nations  instead  of  allowing  the  dis- 
puting powers  gradually  to  drift,  sooner  or  later, 
into  war. 

The  Conference  of  1899  provided  for  a  panel  of 
eminent  men,  jurists  learned  in  the  Law  between 
Nations,  from  whom  two  disagreeing  Nations  could 
readily  constitute  an  International  Tribunal  to  tr>' 
the  cause  of  difference  between  the  disputing  powers, 
so  soon  as  the  latter  had  decided  to  refer  their 
dispute  for  solution  to  an  International  Court  of 
Justice  for  a  judicial  decision.'  The  Second  Hague 
Peace  Conference  of  1907,  at  which  forty-four  of 
the  Nations  were  represented,  perfected  the  machin- 
ery for  the  calling  into  being  of  International  Judicial 
Tribunals,  appointed  ad  hoc,  and  the  American 
delegation  proposed  the  establishment  of  a  Supreme 

'  A.  Pcarcc  Higgins:  Thf  Hague  Peace  Conferences,  Cambridge 
University  Press,  1909,  page  ub  cl  stq. 


THE    UNITED    STATES    SUPREME    COURT.  5 

Court  of  the  World,  to  be  modelled  largely  upon  the 
Supreme  Court  of  the  United  States  of  America. 

The  Second  Hague  Conference  made  improve- 
ments in  the  manner  of  constituting  ad  hoc  Inter- 
national Tribunals  to  try  cases  of  discord  arising 
between  the  Nations.  But  owing  to  the  refusal  of 
the  Powers  to  agree  to  the  establishment  of  an 
International  Court  composed  of  a  small  number  of 
judges,  fifteen  in  number  for  example,  unless  each 
Power  was  represented  upon  the  Court  in  the 
person  of  a  judge,  the  idea  of  a  Supreme  Court  of 
the  World  sitting  in  judgment  above  forty-four 
Nations,  as  the  Supreme  Court  of  the  United 
States  sits  upon  the  forty-eight  member  States  of 
the  North  American  Union,  failed  of  realization. 

Since  that  time  the  advocates  of  the  establish- 
ment of  a  Supreme  Court  of  the  World  have  argued 
that  the  appointment  of  judges  of  The  Hague 
International  Courts  to  try  single  cases,  does  not 
create  in  the  personnel  of  such  temporary  and 
quickly  disappearing  Tribunals,  that  esprit  de  corps 
and  absolutely  fearless  independence  of  the  pres- 
sure of  outside  public  opinion  which  are  so  abso- 
lutely necessary,  except  in  the  case  of  an  excep- 
tional man,  in  order  to  obtain  judicial  judgments 
based  upon  the  Law  instead  of  political  compro- 


6  A    WORLD   COORT    IN   THE    LIGHT   OF 

mises  based  upon  diplomatic  needs  and  ends.  And 
the  advocates  of  a  Supreme  Court  of  the  World 
composed  of  a  small  number  of  jurists  appointed 
for  life,  maintain  that  in  that  way,  the  existence  of 
the  Tribunal,  through  the  life  tenure  of  its  mem- 
bers, will  be  continuous  like  that  of  any  regularly 
constituted  Municipal  Court  with  Ufe  tenure.  And 
that  consequently,  there  will  be  ehminated  from 
such  an  International  Supreme  Court  the  desire  to 
arrive  in  formulating  its  opinion  at  a  compromise 
which  will  satisfy  both  parties,  and  that  decisions 
will  be  secured  based  strictly  upon  legal  rather 
than  upon  political  or  diplomatic  grounds. 

Happily,  to  test  in  a  measure  through  concrete 
experience  what  may  be  expected  from  a  Supreme 
Court  of  the  World  if  once  set  up,  we  have  an 
analogous  example  in  the  Supreme  Court  of  the 
United  States  of  America.  Let  us  examine  in  how 
far  that  great  Court,  set  up  above  a  number  of 
banded  States  that  had  been  originally  sovereign  and 
that  still  retain  much  of  their  original  sovereignty, 
has  succeeded  in  settling  in  peace  through  its  deci- 
sions the  conflicting  claims  of  the  various  States  of 
the  North  American  Union,  at  the  beginning 
thirteen,  now  forty-eight  in  number. 


THE    UNITED    STATES    SUPREME    COURT. 


PART  I. 

When  the  thirteen  colonies  revolted  in  1775 
against  the  mother  country,  and  then  in  July,  1776, 
proclaimed  their  independence  as  free,  sovereign 
and  independent  States,  they  sought  to  add,  and 
were  successful  in  their  purpose,  thirteen  members 
to  the  family  of  Nations.  Owing  to  the  exigencies 
of  the  war,  they  found  it  necessary  to  perfect  the 
loose  bond  of  common  opposition  to  the  dictates  of 
Great  Britain  that  united  them  at  first  into  a  more 
firm  alliance,  which  shoiild  preclude  the  possibil- 
ities of  their  falling  out  with  one  another.  Accord- 
ingly, the  Articles  of  Confederation  were  drawn  up 
and  agreed  to  by  the  thirteen  States.  Before  the 
colonies  had  broken  with  the  mother  land,  a 
fruitful  cause  of  trouble  and  jealousy  between 
the  colonies  had  been  the  uncertainty  as  to  the 
boundaries  dividing  them.  Some  of  these  disputes 
over  the  frontier  line  between  two  colonies  had 
been  settled  by  some  form  or  other  of  judicial 
appeal. 

For  instance,  back  in  1650,  the  Dutch  colony 
of  New  Netherland,  and  the  English  colonies  of 
New  Haven  and  Connecticut,  who  for  a  number 


8  A    WORLD    COURT    IN    THE    LIGHT    OP 

of  years  previously  did  not  agree  as  to  the  fron- 
tier which  separated  the  Dutch  and  the  English 
possessions  in  North  America,  as  well  as  con- 
cerning the  manner  of  regulating  various  matters 
that  had  arisen  between  the  settlements  of  the 
two  nationalities,  agreed,  largely  upon  the  initia- 
tive of  Governor  Peter  Stuyvesant  of  Amsterdam 
in  New  Netherland,^  to  refer  their  dispute  to 
a  board  of  adjudication.  This  board,  which  con- 
sisted of  two  members  appointed  by  the  colony  of 
New  Netherland  and  two  named  by  the  colonies  of 
New  Haven  and  Connecticut,  met  in  Connecticut, 
September  19th,  1650.  The  four  members  of  this 
board  signed  a  provisional  agreement  which  regu- 
lated as  fairly  as  possible  for  both  sides  the  questions 
of  minor  importance,  such  as  that  of  reciprocity 
concerning  the  exchange  of  prisoners  fleeing  from 
justice.  In  that  agreement  the  Board  of  Adjudi- 
cation also  agreed  upon  a  provisional  frontier  line 
which  was  to  divide  the  possessions  of  the  Hollanders 
and  the  English  upon  Long  Island  as  well  as  upon  the 
main  land.  The  colonies  of  both  countries,  New 
Netherland  and  New  Haven  and  Connecticut,  as  well 

'  For  the  correctness  of  these  names,  the  author  is  indebted  to  the 
learned  librarian  of  the  New  York  Historical  Society,  Mr.  George 
Kelby. 


THE   UNITED   STATES   SUPREME   COURT.  9 

as  all  of  their  subjects  were  to  recognize  that  line 
until  the  United  Netherlands  and  England  in  Europe 
had  agreed  upon  a  final  and  complete  settlement  of 
the  frontier  line.  The  agreement  was  in  the  nature 
of  a  modus  vivendi  merely,  since  it  was  to  hold 
good  only  until  it  had  been  ratified,  or  rejected 
by  the  two  motherlands.  Still  it  was  not  only 
a  settlement,  so  far  as  the  colonies  concerned  had 
the  power,  by  means  of  a  quasi-covut,  but  also  it 
was  an  appeal  from  the  colonies  for  a  final  settle- 
ment of  the  questions  at  issue  to  the  home  govern- 
ments on  the  other  side  of  the  Atlantic.  Before 
the  matter  could  be  taken  up  by  the  two  govern- 
ments in  Evu"ope,  however,  the  United  Netherlands 
and  England  were  again  plunged  in  a  European 
war,  one  of  whose  results  was  the  annexation  by 
the  English  Crown  of  the  colony  of  New  Nether- 
land.  Nevertheless,  as  early  as  the  middle  of  the 
seventeenth  centiuy,  the  differences  over  the  bound- 
ary between  the  Dutch  colony  of  New  Netherland 
and  the  two  English  colonies  of  New  Haven  and 
Connecticut  in  North  America,  were  adjusted  in  a 
peaceful  manner  for  a  period  of  several  years  by  a 
mixed  commission  of  representatives  of  the  two 
contending  nationalities.  This  historic  event,  of 
course,  was  well  known  to  the  delegates  of  New  York 


10  A    WORLD   COURT    IN    THE    LIGHT    OP 

(the  successor  of  New  Nctherland)  and  Connecticut 
in  the  Constitutional  Convention.^ 

The  thirteen  colonies  were  practically,  owing  to 
llic  lack  of  communication  through  the  virgin  forest, 
thirteen  distinct  settlements  or  commonwealths, 
separated  from  one  another  by  the  wilderness,  and, 
through  their  commerce  and  their  political  relations, 
were  in  closer  touch  with  the  mother  country  than 
they  were  with  one  another. 

In  addition,  in  colonial  times,  a  custom  gradually 
arose  among  the  English  speaking  North  American 
colonies  to  refer,  sooner  or  later,  their  conflicting 
boundary  claims,  either  to  the  King  in  Council  or 
to  commissions  appointed  by  the  Crown.  This 
manner  of  carr>'ing  the  boundary  disputes  of  the 
colonies  to  the  final  judgment  of  the  sovereign 
aided  by  his  privy  council  or  a  commission  of  his 
appointment  for  each  case  resulted  no  doubt  from 
the  fact  that  the  King  in  Council  was  the  bond  of 
union  not  only  between  England  and  her  colonies 
but  also  between  each  one  of  the  colonies  and  one 
and  all  of  the  other  colonies.  In  other  words,  the 
relations  of  the  colonies  to  one  another  and  to  the 

*  Ebcnezcr  Hazard:  SlaU  Papers,  Philadelphia,  1794,  Volume  II., 
pages  154-173. — Charles  J.  Hoadly,  Rrcords  of  the  Colony  and  Pliinl<j- 
lion  oj  New  Uaven,  1638-1649,  Hartford,  1857,  pages  507-536. 


THE    UNITED    STATES    SUPREME    COURT.  11 

motherland  through  the  sovereign  and  his  privy 
council,  caused  the  colonies  to  look  to  the  King 
in  Council,  as  a  supreme  arbiter  or  tribunal  to  decide 
the  boundary  disputes  between  the  several  colonies. 

In  Campbell  vs.  Hall,  a  case  decided  in  1774  in  the 
King's  Bench,  Lord  Mansfield  said  that  it  was  the 
Law  that,  h  propos  of  the  colonies,  the  King  in 
Council  cotdd  not  go  "contrary  to  fundamental 
principles."* 

The  most  important  of  these  boundary  cases 
between  the  colonies  which  was  settled  by  an  appeal 
to  the  English  King  and  his  Privy  Council,  was  the 
disputed  frontier  between  Pennsylvania  and  Mary- 
land.'^  In  its  origin  the  case  went  back  to  the  time 
when  Charles  the  Second  made  his  grant  to  Penn  of 
territory  for  a  colony  in  North  America.  The  dis- 
pute over  the  true  boundary  between  the  grants  to 
Penn  and  Baltimore  was  carried  on  first  by  the 
original  disputants  and  then  by  their  successors. 
The  King  in  Council  was  appealed  to  on  more  than 

*  Cowper's  Cases  in  the  Court  of  King's  Bench,  London,  1800,  2nd 
edition.    Volume  I.,  page  209. 

*  Pennsylvania  Archives,  edited  by  John  B.  Linn,  and  William  H. 
Egle,  Second  Series,  Volume  VIL,  Harrisburg,  1878;  Ibid,  edited  by- 
William  H.  Egle,  Second  Series,  Volume  XVL,  Harrisburg,  1890. — 
Charles  Penrose  Keith:  Chronicles  of  Pennsylvania,  1688-1748, 
Philadelphia,  191 7,  pages  5-59. 


12  A    WORLD    COURT    IN    THE    LIGHT    OP 

one  occasion.  Finally,  on  May  the  loth,  1732,  the 
Lord  Baltimore  of  that  day  made  a  formal  and 
written  agreement  with  John,  Thomas  and  Richard 
Pcnn  providing  how  the  boundary  line  between  the 
landed  possessions  of  the  Baltimores  and  the  Penns 
should  be  run.  That  however  did  not  finally  decide 
the  matter,  as  the  two  parties  still  disagreed.  There 
were  disorders  on  the  frontiers  between  the  lands 
possessed  by  the  adherents  of  the  Penns  and  the 
Baltimores.  A  modus  vivendi  between  the  respective 
proprietors  was  arranged  by  the  Lords  for  Trade  and 
Plantation,  and  subsequently  on  May  25th,  1737,  the 
King  in  Council  issued  an  order  for  the  execution  of 
this  temporary  settlement  without  prejudice  to  either 
party.  As  owing  to  the  residence  of  the  Lords 
Proprietors  in  England,  they  were  within  the  juris- 
diction of  the  judicial  tribunals  of  England,  the 
King  and  his  Privy  Council  agreed  meanwhile  to  a 
plan  whereby  the  Lord  Proprietor  of  Pennsylvania 
should  bring  suit  in  the  Court  of  Chancery  against 
the  Lord  Proprietor  of  Maryland  for  the  specific  per- 
formance of  the  agreement  of  May  loth,  1732,  the 
settlement  of  their  mutual  boundary  lines,  and  the 
confirmation  of  title  to  the  land.  The  Penns  filed 
in  June,  1735,  a  bill  in  equity  to  compel  specific 
performance  of  the  agreement.     The  decision  of 


THE    UNITED    STATES    SUPREME    COURT.  13 

the  Court  was  to  be  enforced  by  an  Order  in 
Council.  Accordingly,  the  important  case  known 
as  Penn  vs.  Lord  Baltimore,  was  heard  and  adjudi- 
cated in  the  Court  of  Chancery  by  Lord  Chancellor 
Hardwicke. 

After  careful  argiunent  and  consideration,  the 
case  was  decided  in  favor  of  the  claims  of  the  Penns 
in  behalf  of  Pennsylvania  as  against  those  of  the 
Baltimores  for  Maryland.  To  enforce  the  judg- 
ment of  the  Court  of  Chancery,  an  Order  in  Council 
in  accord  with  the  decision  was  issued  to  uphold 
the  legal  right  of  Pennsylvania  to  exercise  her 
jurisdiction  throughout  the  territory  in  dispute. 
This  great  judicial  contest  which  was  submitted 
through  the  King  in  Council  to  the  English  Court 
in  Chancery  was  doubtless  well  known  to  the 
representatives  of  Pennsylvania,  Maryland  and 
Delaware  who  sat  in  the  Federal  Convention,  as 
well  as  to  other  members  of  the  body. 

There  were  other  cases  of  conflicting  boundaries, 
arising  between  the  colonies,  where  an  appeal  was 
made  to  the  King  in  Council.  For  example,  Con- 
necticut in  1754,  consulted  William  Murray,  then 
attorney-general  of  England,  afterwards  the  cele- 
brated Lord  Mansfield,  whether  an  agreement 
entered  into  by  Connecticut  with  Massachusetts  in 


14  A    WORLD    COl'RT    IN    THE    LIGHT    OF 

1713  concerning  their  common  boundary  line  would 
be  set  aside  by  a  commission  appointed  by  the 
Crown.  And  it  was  the  attorney-general's  opinion 
that  after  a  lapse  of  more  than  forty  years,  the 
Crown  would  not  help  to  set  aside  an  agreement 
in  which  the  two  provinces  had  voluntarily  joined 
defining  their  mutual  frontier. 

In  1754,  two  generations  and  a  half  after  Charles 
the  Second's  grant  to  Penn  of  Pennsylvania,  which 
grant  Penn  had  reinforced  and  consummated  by 
actually  occupying  the  province  through  the  estab- 
hshment  of  settlements  within  its  bounds,  a  move- 
ment started  among  the  people  of  the  colony  of 
Connecticut  to  occupy  and  settle — regardless  of  the 
proprietary  rights  of  Penn  and  his  successors  under 
the  grant  from  King  Charles  the  Second — upon 
some  of  the  lands  along  the  east  branch  of  the 
Susquehanna  River.  In  1754,  the  Susquehanna 
Company,  which  was  composed  of  Connecticut 
people,  purchased  from  "the  Five  Nations  of 
Indians  called  The  Iroquois"  for  the  sum  of  two 
thousand  pounds  of  the  money  current  in  the 
colony  of  New  York,  lands  on  the  Susquehanna 
River  between  the  41st  and  43rd  degrees  of  north 
latitude.  The  grant  conveying  title  from  the 
Iroquois  to  the  Susquehanna  Company  was  signed 


THE   UNITED   STATES   SUPREME   COURT.  15 

Jtdy  nth,  1754.®  The  Connecticut  colonists  based 
their  rights  to  settle  along  the  Susquehanna,  in 
what  became  known  as  the  Wyoming  Valley,  upon 
the  ground  that  Connecticut  stretched  westward  to 
the  Pacific  Ocean,  always  excepting  the  territory 
that  belonged  to  the  intervening  colonies  of  New 
York  and  New  Jersey.  It  was  not,  however,  until 
1763,  that  people  from  Connecticut  settled  in  the 
Wyoming  Valley.  As  might  naturally  be  supposed 
this  appropriation  by  Connecticut  settlers  of  lands 
that  came  within  the  grant  to  William  Penn,  with- 
out consulting  the  proprietors  of  Pennsylvania,  led 
to  a  dispute  first  in  words,  then  in  deeds,  which 
ultimately  resulted  in  a  state  of  war  on  a  small 
scale  between  the  people  of  Pennsylvania  and  the 
Connecticut  settlers  or  intruders  as  they  were  called 
by  the  Pennsylvanians.  In  the  beginning,  the 
Colony  of  Connecticut  did  not  countenance  the 
claims  of  the  Susquehanna  Company,  and  did  not 
recognize  in  any  way  that  the  town  of  Westmore- 
land in  the  Wyoming  Valley  was  an  integral  part 
of  the  colony  of  Connecticut.  But  owing  to  the 
determined  opposition  of  the  proprietors  of  Penn- 
sylvania to  the  Connecticut  settlers,  the  Assembly 

"  Original  manuscript  in  the  collection  of  the  Historical  Society 
of  Pennsylvania,  Connecticut  Claims  Papers. 


16  A    WORLD    COURT    IN    THE    LIGHT    OP 

of  Connecticut,  after  consulting  eminent  counsel  in 
England,  decided  on  October  2nd,  1773,^  to  extend 
its  jurisdiction  "to  those  lands  contained  within 
the  Limits  and  Bounds  of  the  Charter  of  this  Colony 
Westward  of  the  Province  of  New  York." 

With  that  object  in  view,  Connecticut  sent  a 
committee  of  three.  Colonel  Dyer,  Dr.  Johnson  and 
Jedediah  Strong,  to  Philadelphia  to  treat  with  John 
Penn,  the  Proprietary  Governor  of  Pennsylvania.* 
Governor  Penn  told  the  gentlemen  from  Connec- 
ticut that  there  was  no  need  to  negotiate  as  to  the 
boundaries  of  Pennsylvania  and  Connecticut.  He 
maintained  that  the  western  bounds  of  Connecticut 
had  been  settled  "about  two  years  after  the  Date 
of  their  Charter,  under  the  authority  of  a  Royal 
Commission,  and  solemnly  assented  to,  ratified  and 
confirmed  by  the  Governor  and  Commissioners  of 
their  own  Colony;  that,  after  this  Settlement,  the 
Grant  of  Pennsylvania  was  made  to  William  Penn, 
and  that  it  was  not  understood  at  that  time  by  the 
Crown,  nor  by  the  Grantee,  William  Penn,  nor  by 
any  other  persons  since  so  far  as  he  had  heard,  that 

^  Pennsylvania  Archives,  second  series,  edited  by  William  H.  Egle, 
Harrisburg,  1890,  Volume  XVIII.,  page  170. 

*  Tlif  Public  Records  of  the  Colony  of  Coiinfclicul,  edited  by  Charles 
J.  Hoadly,  Hartford,  1887,  page  161. 


THE   UNITED    STATES   SUPREME   COURT.  17 

the  said  grant  any  way  intrenched  upon  or 
approached  near,  any  of  the  New  England  grants, 
till  the  late  claim  was  set  up  on  the  part  of  Con- 
necticut."" Governor  Penn  refused  to  join  in  an 
application  to  the  Crown  for  the  appointment  of 
commissioners  as  Connecticut  wished  to  review  and 
decide  the  boundaries  between  them,  "because  that 
would  be  admitting  what  he  totally  denied,"  to  wit, 
that  the  territorial  claims  of  Pennsylvania  and  Con- 
necticut in  any  way  conflicted.  Governor  Penn  main- 
tained "that  His  Majesty  in  Council,  was  the  only 
proper  and  constitutional  Tribunal  for  a  Decision  of 
this  kind. "  As  he  was  anxious  to  have  the  difficulty 
brought  before  that  Covirt  for  settlement,  if  the 
Colony  of  Connecticut  would  not  take  an  appeal  of 
the  question  to  the  King  and  His  Privy  Council,  he 
would  himself  invite,  Penn  said.  His  Majesty  King 
George  to  take  the  matter  under  consideration. 

The  more  the  dispute  grew  in  importance,  the 
more  notice  it  attracted.  The  Rev.  William  Smith, 
Provost  of  the  University  of  Pennsylvania,'''  wrote 

^Pennsylvania  Archives,  second  series,  edited  by  W.  H.  Egle, 
Harrisbiirg,  1890,  Vol.  XVIII.,  page  171  el  seq. 

'"William  Smith,  D.  D.:  An  Examination  of  the  Connecticut  Claim 
to  lands  in  Pennsylvania,  1774;  Pennsylvania  Archives,  second  series, 
edited  by  W.  H.  Egle,  Harrisburg,  1890,  Volume  XVIII. ,  pages  125-214. 


18  A    WORLD    COURT    IN    THE    LIGHT    OF 

an  essay  in  support  of  the  rights  of  Pennsylvania, 
and  Roger  Sherman  Ukewise  used  his  pen  to  main- 
tain the  claims  of  Connecticut." 

On  the  i6th  of  February,  1775,  the  Proprietors  of 
Pennsylvania,  once  more  as  on  several  occasions  in 
former  years,  addressed  "To  the  King's  most 
excellent  Majesty  in  Council"  a  petition  in  which 
they  examined  the  question  in  dispute  in  detail.'* 
They  stated  and  presented  once  more  much  evidence 
that  on  previous  occasions  they  had  submitted  to  the 
King  and  the  Privy  Coimcil  in  support  of  the  grant 
to  Perm  and  against  the  Connecticut  claims  to  the 
Wyoming  lands. 

Then  the  petitioners  referred  to  the  fact  that  at 
the  time  Charles  the  Second  granted  to  Penn  the 
charter  of  Pennsylvania,  Connecticut  made  no 
objection  to  the  granting  of  the  charter,  nor  did 
Connecticut  lay  claim  to  lands  west  of  New  York 
and  New  Jersey  until  "about  the  year  1755  when  it 
was  pretend**"  that  under  the  Connecticut  charter, 
the  Connecticut  people  "had  a  right  to  skip  over 

"  Roger  Sherman  in  John  Sanderson's  Biography  of  Ike  signers  of 
the  Declaration  of  Independence,  Philadelphia,  1823,  Volume  III., 
pages  340-348. 

'*  Manuscript  in  the  collections  of  the  Historical  Society  of  Penn- 
sylvania: Penn  MSS.,  Connecticut  Claims. 


THE    UNITED    STATES    SUPREME    COURT.  19 

New  York  and  New  Jersey, "  and  to  claim  the  extent 
of  the  latitude  of  Connecticut  westward  all  the  way 
to  the  Pacific  Ocean  or  South  Sea  as  it  was  then 
called.  In  that  way  the  Connecticut  people  would 
take  away  one-third  of  the  land  that  Charles  the 
Second  had  granted  to  William  Penn.  Many  other 
pertinent  facts  were  presented  in  support  of  the 
claims  of  the  Proprietors  of  Pennsylvania  to  the 
Wyoming  Valley  lands.  The  petition  finished  by 
praying  His  Majesty  the  King  to  declare  that 
Connecticut  was  bounded  on  the  west  by  the 
Province  of  New  York. 

Then  as  the  struggle  between  the  thirteen  English 
colonies  and  their  mother  country  developed,  and 
the  possibility  of  Pennsylvania  appealing  the  Wyom- 
ing controversy  to  the  King  in  Council  passed 
away,  Pennsylvania  brought  that  dispute  to  the 
notice  of  the  Continental  Congress. 

On  September  30th,  1775,  the  Assembly  of 
Pennsylvania  discussed  "the  Intrusion  of  a  Num- 
ber of  People  into  this  Province,  under  a  pretended 
Claim  of  the  Colony  of  Connecticut,  to  the  great 
Annoyance  of  the  good  People  of  this  Province," 
and  instructed  the  Pennsylvania  delegates  in  the 
Continental  Congress,  which  was  sitting  in 
Philadelphia    in    the    Pennsylvania    State    House, 


20  A    WORLD    COURT    IN    THE    LIGHT    OF 

to  bring  the  dispute  to  the  attention  of  the 
Congress." 

Accordingly  in  the  early  days  of  October,  1775, 
Ross  of  the  Pennsylvania  delegation  in  the  Con- 
gress, presented  to  the  latter  body  this  resolution 
of  the  Pennsylvania  Assembly.  John  Rutledge  of 
South  Carolina  moved  that  the  papers  should  be 
referred  to  the  delegates  of  the  two  colonies. 
Thomas  Willing,  one  of  the  Pennsylvania  delega- 
tion and  also  a  Justice  of  the  Supreme  Court  of 
that  Province,  pointed  out  that  the  delegates 
of  the  two  colonies  were  interested  parties  to  the 
controversy  and  said  that  they  would  need  an 
umpire  to  reach  a  settlement.  Roger  Sherman, 
a  Connecticut  delegate,  thought  the  two  dele- 
gations might  be  able  to  agree  on  a  temporary 
line.'* 

After  the  delegations  of  the  two  States,  to  whom 
Congress  had  submitted  the  matter,  could  not 
come  to  an  agreement  concerning  the  question,  the 
whole  matter  was  referred  to  a  committee  consist- 
ing   of    Rutledge,    Chase,    Jefferson,    Kinsey    and 


'*  Voles  and  Proceedings  of  the  House  of  Represenlaiives  of  the  Prov- 
ince of  Pennsylvania,  Philadelphia,  1776,  Volume  VI.,  page  619. 

'^  John  Adams:    Works,  Boston,  1850,  Volume  II.,  page  465. 


THE    UNITED    STATES    SUPREME    COURT.  21 

Hopkins.^'  As  time  passed,  the  people  of  Penn- 
sylvania and  the  Connecticut  intruders  came  to 
blows  and  blood  was  shed.  On  December  20th, 
1 775 1  Congress  decided  that  the  contending  parties 
should  at  once  stop  all  hostilities,  "until  the  dis- 
pute can  be  legally  decided."^''  Finally,  as  the  result 
of  the  ill  feeling  engendered,  troops  had  to  be  sent 
to  the  seat  of  trouble  to  keep  the  peace  between 
them.^''  Owing  to  the  war  with  Great  Britain, 
however,  these  troops  were  soon  ordered  to  join 
General  Washington  and  the  Wyoming  colonists 
found  themselves  left  on  the  frontier  to  reptdse  an 
attack  of  the  English  and  the  Indians. 

When  the  war  for  independence  started,  besides 
the  Pennsylvania-Connecticut  controversy  there 
were  several  other  boundary  disputes  outstanding 
between  several  of  the  newly  born  Nations,  and 
in  the  Articles  of   Confederation   special  provision 


'^  Journal  oj  the  Continental  Congress,  I774-I78g,  edited  by  Worth- 
ington  C.  Ford,  Washington,  1905,  Volume  III.,  page  295. — ^John 
Sanderson:  Biography  oJ  the  Signers  of  the  Declaration  of  Indepettdence, 
Philadelphia,  1823,  page  250. 

"  Journal  of  the  Continental  Congress,  1774-178Q,  edited  by  Worth- 
ington  C.  Ford,  Washington,  1905,  Volume  III.,  page  439. 

'^  Journal  of  the  Continental  Congress,  1774-178Q,  edited  by  Worth- 
ington  C.  Ford,  Washington,  1906,  Volimie  V.,  pages  698-9. 


22  A    WORLD    COURT    IN    THE    LIGHT    OP 

was  made  looking  to  the  peaceful  settlement  of 
the  disputed  frontiers  and  land  grants.  Under  the 
Articles  of  Confederation,  the  United  States  had 
no  judicial  department.  But  by  the  ninth  article 
of  that  agreement,  provision  was  made  for  the 
establishment  of  a  series  of  Courts  of  Appeal  to 
try  differences  between  the  various  colonies,  each 
Court  being  established  ad  hoc  to  hear  one  partic- 
ular case. 

The  Articles  of  Confederation  went  into  efifect  in 

1 78 1,  and  the  State  of  Pennsylvania,  following  her 
earlier  practice  in  the  controversy,  when  she  was  a 
colony,  of  appealing  this  case  to  the  King  in  Council, 
petitioned  Congress  on  November  3rd,  1781,  accord- 
ing to  the  ninth  article,  for  a  hearing  to  settle  the 
question.'*  There  were  many  delays.  On  November 
14th,  1 78 1,  Congress  agreed  to  appoint  June  24th, 

1782,  as  the  date  for  Pennsylvania  and  Connecticut 
to  put  in  an  appearance,  "by  their  lawful  agents, 
at  the  place  in  which  Congress  shall  then  be 
sitting,""*  and  the  Congress  further  voted  to  send  a 
formal  notice  to  the  legislative  authorities  of  the 

"  Journal  oj  Congress,  Philadelphia,  1800,  Volume  VII.,  page  169. 

"  Journal  of  Congress,  containing  their  proceedings  from  January 
I,  1781,  to  November  2,  178J,  Philadelphia,  1800,  Volume  VII., 
page  1 74. 


THE   UNITED   STATES   SUPREME   COURT.  23 

State  of  Connecticut  that  that  Commonwealth,  as 
well  as  Pennsylvania,  must  put  in  an  appearance 
before  Congress  on  June  24th,  1782.  Accordingly, 
on  the  appointed  day,  Pennsylvania  appeared  before 
Congress  through  her  properly  accredited  counsel, 
William  Bradford,  Joseph  Reed,  James  Wilson  and 
Jonathan  Dickinson  Sergeant,  and  her  solicitor, 
Henry  Osbom.  Connecticut  had  appointed  Eliphalet 
Dyer,  William  Samuel  Johnson  and  Jesse  Root  to 
represent  her  on  that  occasion,  but  only  Dyer 
was  present  and  so  the  question  had  to  be  con- 
tinued until  the  next  month.^° 

On  Jvily  1 6th,  the  matter  was  again  taken  up. 
Pennsylvania  was  represented  by  Wilson  and 
Sergeant,  with  Osborn  as  their  solicitor,  and  Connec- 
ticut by  Dyer  and  Root.  After  some  discussion 
Congress  finally  resolved; 

"That  the  agents  of  Pennsylvania  and  Connect- 
icut be,  and  they  are  hereby  directed  to  appoint 
by  joint  consent,  commissioners  or  judges  to  con- 
stitute a  Court  for  hearing  and  determining  the 
matter  in  question,  agreeably  to  the  9th  article  of 
the  Confederation.  "^^ 

^  Journal  of  Congress:  Philadelphia,  1800,  Volume  VII.,  page  302. 
^'  Journal  oj  Congress:    Philadelphia,  i8cx),  Volume  VIZ.,  page  315. 


24  .    A   WORLD   COURT    IN   THE    LIGHT   OP 

On  August  1 2th,  1782,  the  agents  for  the  Com- 
monwealth of  Pennsylvania  and  the  State  of  Con- 
necticut reported  that,  in  accordance  with  the  reso- 
lution of  Congress  of  July  i6th,  they  had  appointed 
as  "commissioners  to  constitute  a  court  for  hearing 
and  detcmiining"  the  controversy  between  Penn- 
sylvania and  Connecticut,  William  Whipple  of  New 
Hampshire,  Nathaniel  Green  of  Rhode  Island, 
David  Brearly  and  William  Churchill  Houston  of 
New  Jersey,  Cyrus  Griffin  and  Joseph  Jones  of 
Virginia,  and  John  Rutledge  of  South  Carolina." 
"Any  five  or  more  of  whom,"  the  agents  went  on 
to  say  in  their  report,  "we  have  agreed  shall  con- 
stitute a  Court,  and  have  authority  to  proceed  and 
determine  the  matter  and  difference  between  the 
said  States."  However,  Nathaniel  Green  and 
John  Rutledge  declined  to  serve,  and  Thomas  Nelson 
of  Virginia,  and  Welcome  Arnold,  of  Rhode  Island, 
were  named  in  their  stead.*^  Congress  ratified  the 
appointments." 

**  Journal  of  Congress:  Philadelphia,  1800,  Volume  VII.,  page  331. 
^^  Journal  0/  Congress:  Philadelphia,  1800,  Volume  VII.,  page  336. 

'*  Journal  of  Congress:   Philadelphia,  1800,  Volume  VII.,  page  336. 

"Whereupon,  Ordered,  That  the  secretary  prepare  and  report  the 
drauRht  of  a  commission  for  the  said  William  Whipple,  Welcome 
Arnold,  David  Brearly,  William  Churchill  Houston,  Cyrxjs  Griffin, 


THE    UNITED    STATES    SUPREME    COURT,  25 

The  Court  was  commissioned  to  convene  at 
Trenton,  in  the  State  of  New  Jersey.  On  November 
8th,  1782,  a  quonmi  of  the  members  of  the  Tribunal 
being  in  attendance,  the  Court  began  to  try  the  case 
and  sat  for  that  purpose  until  December  30th.  The 
counsel  for  Pennsylvania  were  James  Wilson,  Joseph 
Reed,  Jonathan  D.  Sergeant  and  William  Bradford. 
Connecticut  was  represented  by  Eliphalet  Dyer, 
Jesse  Root  and  William  S.  Johnson.^^  The  argu- 
ments of  counsel  have  not  come  down  to  us,  but  the 
briefs  have,  and  show  great  learning  and  much 
work  on  the  part  of  the  legal  representatives  of  both 
States  in  their  efforts  to  win  the  case  for  their 
respective  Commonwealths. 

Before  the  members  of  the  Trenton  Inter-State 
Court  decided  the  case,  they  agreed  that  the  reasons 
for  their  conclusions  should  never  be  given,  and  that 
the  decision  should  go  forth  to  the  world  as  the 
unanimous  opinion  of  the  Court. 

The  decision  of  the  Court  was  handed  down  on 

Joseph  Jones  and  Thomas  Nelson,  or  any  five  or  more  of  them,  as 
commissioners  or  judges  nominated  by  the  States  of  Pennsylvania 
and  Connecticut,  to  determine  the  dispute  between  the  said  States 
agreeable  to  the  9th  article  of  the  Confederation." 

^^  Pennsylvania  Archives,  second  series,  edited  by  William  H.  Egle, 
Harrisburg,  1890,  Volume  XVIII.,  page  621. 


26  A    WORLD   COURT    IN   THE    LIGHT   OP 

December  30th.  It  was  concise,  clear  and  final. 
The  Covirt  held: 

"This  Cause  has  been  well  argued  by  the  Learned 
Council  on  both  sides. 

"The  Court  are  now  to  pronounce  their  Sentence, 
or  Judgment. 

"We  are  unanimously  of  Opinion  that  the  State 
of  Connecticut  has  no  right  to  the  Lands  in  con- 
troversy. 

"We  are  also  unanimously  of  Opinion  that  the 
Jurisdiction  and  Preemption  of  all  the  Territory 
lying  within  the  Charter  boundary  of  Pennsylvania 
and  now  claimed  by  the  State  of  Connecticut  do 
of  Right  belong  to  the  State  of  Pennsylvania. 

"WM.  WHIPPLE 
WELCOME  ARNOLD 
DAVD  BREARLY 
CYRUS  GRIFFIN 
WM.  C.  HOUSTON 

"Trenton,  30th  Dcc'r.  1782." 

The  decision  effectually  put  an  end  to  the  dis- 
pute of  jurisdiction  and  possession  as  to  whether 
Pennsylvania  or  Connecticut  was  entitled  to  the 
lands  that  both  States  claimed.     As  soon  as  the 


THE    UNITED    STATES    SUPREME    COURT.  27 

decision  was  known,  President  John  Dickinson  of 
Pennsylvania  issued  a  proclamation  forbidding  any 
violence  on  the  part  of  individuals  to  gain  posses- 
sion of  disputed  land  claims.  One  of  the  judges  of 
the  Court,  Griffin,  in  a  letter  to  President  Dickin- 
son said:  "this  I  will  undertake  to  say,  that  no 
Court  ever  met  and  decided  a  great  question  less 
subject  to  partiality  or  corruption,  or  in  which 
more  candor  and  freedom  of  debate  were  exercised 
*  *  *  I  can  assure  you,  sir,  that  the  commis- 
sioners were  unanimously  of  opinion  that  the 
private  right  of  soil  should  not  be  afifected  by  the 
decision.  "^^ 

The  decision  shows  conclusively  that  the  Trenton 
Inter-State  Tribunal  sat  as  a  Court  to  award  jus- 
tice upon  legal  grounds,  and  not  as  a  board  of 
mediation  to  effect  a  reconciliation  of  the  conflict- 
ing claims  upon  the  basis  of  a  compromise. 

Commenting  on  this  case.  Judge  Henry  Wade 
Rogers  has  said:  "The  fact  that  the  defeated  sover- 
eignty acquiesced,  although  Congress  had  no  power 
given  it  to  enforce  judgment,  is  without  much  signifi- 
cance. A  State  as  small  as  Connecticut  would  not  be 
likely  to  make  war  upon  a  State  the  size  of  Penn- 

^'  Pennsylvania  Archives,   second   series,  Haxrisburg,    i8go,  pages 
631-632. 


28  A    WORLD    COURT    IN    THE    LIGHT    OF 

sylvania  over  such  a  dispute."  Besides,  Con- 
necticut could  not  have  passed  her  troops  across 
the  territory  of  New  York  without  encroaching 
upon  the  neutraUty  of  the  latter  commonwealth, 
and  so  probably  involving  New  York  against 
Connecticut  in  the  contest.  Consequently,  Con- 
necticut could  only  have  made  war  upon  Pennsyl- 
vania after  transporting  her  troops  by  sea,  and  the 
trip  from  the  Connecticut  ports  to  Philadelphia  and 
the  other  Pennsylvania  towns  on  the  Delaware 
River  was  far  longer  and  more  difficult  in  1782 
than  it  is  to-day.  In  addition,  another  compelling 
reason  for  the  acquiescence  of  Connecticut  in  the 
decision  of  the  Trenton  Inter-State  Tribunal  was 
the  war  for  independence  which  was  still  going  on. 
All  of  the  eleven  other  States,  as  well  as  Pennsyl- 
vania and  Connecticut,  wished  to  see  that  contest 
brought  to  a  speedy  and  successful  close.  There- 
fore, all  of  those  eleven  commonwealths  had  a  very 
real  interest  in  wishing  the  decision  accepted.  The 
common  good  of  all  the  member  States  of  the 
Confederation  aided  the  acceptance  of  the  decision 
of  the  Trenton  Inter-State  Court. 

The  fact,  however,  that  this  case,  involving  the 
sovereignty  to  land  claimed  by  two  sovereign  and 
member   States   of   the   Confederation    which   had 


THE    UNITED    STATES    SUPREME    COURT.  29 

been  for  many  years  a  bone  of  contention  between 
the  two  incipient  Nations,  was  peacefully  adjusted 
by  the  employment  of  judicial  means,  was  a  very 
great  gain  for  the  future  of  the  Confederation.  It 
was  not  merely  that  one  more  cause  of  future 
trouble  for  the  United  States  of  America  was  thus 
peacefully  disposed  of,  but  also  it  helped  to  educate 
the  States  and  their  peoples  to  look  to  jural  rather 
than  to  armed  means  for  deciding  and  disposing 
of  differences  between  the  several  members  of  the 
Confederated  States. 

There  were  other  cases  of  boundary  disputes 
between  the  original  colonies  or  States,  among 
them  those  of  South  Carolina  vs.  Georgia,  and 
Massachusetts  vs.  New  York.  In  these  two  cases, 
Inter-State  Courts,  similar  in  form  to  the  Trenton 
Tribunal  which  sat  on  the  case  of  Pennsylvania  vs. 
Connecticut,  were  appointed.  But  as  constantly 
happens  every  day  in  suits  started  between  indi- 
viduals in  the  Municipal  Courts,  those  cases  were 
settled  out  of  Court  and  did  not  come  to  trial. 
Likewise  several  other  cases  between  two  of  the 
States  were  settled  privately  before  Inter-State 
Courts  had  been  appointed  according  to  the  ninth 
article  of  the  Articles  of  Confederation.^'' 

^'  131  Uniled  Stales  Supreme  Court  Reports. 


M)  A    WORLD    COURT    IN    THE    LIGHT    OP 


PART  II. 

In  the  course  of  a  few  years'  experience  under  the 
Articles  of  Confederation,  however,  it  was  found 
that  a  more  perfect  bond  of  union  between  the 
thirteen  States  was  necessary  unless  the  United 
States  of  America  were  to  divide  either  into  several 
groups  or  to  return  to  their  original  thirteen 
component  parts.  Accordingly,  a  Federal  Con- 
vention was  called,  to  which  all  the  States  were 
asked  to  send  delegates.  It  sat  in  Philadelphia  in 
1787.  After  much  discussion  behind  closed  doors, 
it  elaborated  a  fundamental  written  law  or  compact 
which  was  submitted  to  the  several  States  for  their 
acceptance  or  rejection.  Probably  the  most  original 
provision  of  the  new  form  of  government  was  that 
for  the  first  time  in  history  it  was  proposed  to  estab- 
lish side  by  side  with  the  local  sovereignty  another 
sovereignty  which  should  extend  over  all  the  area 
of  the  local  sovereignties.  The  inhabitants  were  to 
be  endowed  with  a  double  allegiance  and  citizenship; 
those  which  they  owed  to  and  obtained  from  the 
individual  State  in  which  they  lived,  and  a  new 
allegiance  and  citizenship  which  they  would  owe 
and  obtain  from  the  new  State  whose  extent  would 


THE    UNITED   STATES   SUPREME   COURT.  31 

be  co-extensive  with  the  total  area  of  all  the  indi- 
vidual thirteen  States  combined. 

Another  innovation  in  government  embodied  in 
the  proposed  new  American  Constitution,  was  the 
creation  of  a  Supreme  Court  for  the  new  Federal 
State  which  was  not  to  be  subject  either  to  the 
legislative  or  executive  branches  of  the  government, 
but  was  to  be  co-equal  with  them.  While  the  plan 
of  an  independent  judicial  power  was  now  to  be  put 
into  actual  practice  for  the  first  time  in  history,  the 
idea  nevertheless  was  not  new  in  1787.  The  germ 
of  this  idea  may  have  been  started  before  1748, 
but  at  any  rate  it  was  clearly  formulated  in  that 
year  in  V Esprit  des  Lois  by  Montesquieu,  published 
at  Geneva.  This  much  cited  and  talked  of  but 
apparently  now  little  read  passage  of  Montesquieu  is 
as  follows :  ' '  There  is  no  liberty  if  the  power  to  judge 
is  not  separated  from  the  legislative  and  the  execu- 
tive powers.  If  it  were  joined  to  the  legislative 
power,  the  authority  over  the  life  and  liberty  of 
citizens  wotdd  be  an  arbitrary  one,  for  the  judge 
wovdd  be  legislator.  If  it  were  joined  to  the  execu- 
tive power,  the  judge  might  have  the  power  of  an 
oppressor.  "^^     Montesquieu  was   one  of  the  pub- 

^*The  original  French  text  is  as  follows: — "II  n'y  a  point  encore 
de  liberty  si  la  puissance  de  juger  n'est  pas  separfe  de  la  puissance 


32  A    WORLD    COURT    IN    THE    LIGHT    OF 

Heists  whose  works  were  known  to  and  consulted 
by  the  members  of  the  Federal  Convention  of 
1787.  In  addition,  however,  the  conception  of 
a  Federal  Supreme  Court  originated,  as  we  have 
seen,  in  part  in  the  history  of  the  thirteen  colonies. 
In  other  words,  the  Federal  Constitution  grew  in 
part  out  of  the  relations  that  developed  in  the 
colonial  period  between  the  colonies  themselves  and 
between  them  and  the  mother  country. 

A  motion  was  made  by  Dickinson  of  Pennsylvania 
during  the  debates  in  the  Federal  Convention  mak- 
ing the  judges  removable  by  the  executive  upon 
the  application  of  both  the  Senate  and  the  House  of 
Representatives.  In  other  words,  the  motion  pro- 
posed a  recall  of  the  judges  by  the  joint  action  of  the 
Congress  and  the  President.  John  Rutledge  of 
South  Carolina  opposed  the  motion  on  the  ground 
that  such  a  proposition  was  incompatible  with  the 
plan  of  giving  the  Federal  Supreme  Court  the  right 
to  judge  between  the  United  States  and  the  indi- 
vidual States,  or  between  two  or  more  individual 
States.     The  motion  was  lost.^ 

Idgislative  et  de  rcxccutricc.  Si  clle  dtait  jointe  k  la  puissance  legis- 
lative, le  pouvoir  sur  la  vie  et  la  libertd  des  citoyens  scrait  arbitraire; 
car  le  juge  serait  16gislateur.  Si  elle  dtait  jointe  k  la  puissance  exec- 
utrice,  Ic  juge  pourrait  avoir  la  force  d'un  oppresseur." 

**  Max  Farrand:     The  Records  of  the  Federal  Comention  0]  1787, 
New  Haven,  1911,  Volume  II.,  page  428. 


THE    UNITED    STATES    SUPREME    COURT.  33 

In  some  of  the  States,  notably  Virginia  and  New 
York,  there  was  much  objection  to  ratifying  the 
new  form  of  general  government,  and  much  of  the 
opposition  to  adopting  the  new  form  of  government 
was  because  of  the  powers  with  which  the  proposed 
Supreme  Coiu-t  of  the  United  States  was  to  be 
clothed. 

However,  the  Constitution,  which  provided  for  a 
Supreme  Court  of  the  United  States  that  would  be 
independent  of  and  on  a  par  with  the  executive  and 
legislative  branches  of  the  government  of  the  new 
Nation  that  it  was  proposed  to  create,  was  finally 
ratified  and  accepted  by  aU  of  the  thirteen  member 
Nations  of  the  Confederation. 

A  hitch  to  the  easy  acceptance  by  the  member 
States  of  the  Union  of  the  United  States  Supreme 
Court  sitting  in  judgment  as  a  Supreme  Tribunal 
over  all  the  individual  States  soon  occiured.  In 
the  celebrated  case  of  Chisholm  vs.  Georgia,^"  one 
of  the  earliest  cases  brought  to  the  bar  of  the  newly 
constituted  Coiut,  a  citizen  of  South  Carolina  sued 
the  State  of  Georgia.  The  case  came  on  for  a 
hearing  only  in  February  term,  1793,  expressly  to 
give  the  State  of  Georgia  ample  time  to  decide 
what  she  would  do  in  the  matter.    Through  counsel, 

*"  2  Dallas,  page  419. 


34  A    WORLD    COURT    IN    THE    LIGHT   OF 

Georgia  presented  a  remonstrance  against  such  a 
suit  being  entertained  by  the  Court,  but  took  no 
further  part  in  the  case.  Randolph,  the  Attorney- 
General  of  the  United  States,  argued  the  right  of 
the  plaintiff  in  the  case,  to  bring  the  suit.  The 
members  of  the  Tribunal  gave  separate  opinions. 

Chief  Justice  Jay  in  his  opinion  stated  the  ques- 
tion at  issue  with  great  clearness.  He  said:  "The 
question  we  are  now  to  decide  has  been  accurately 
stated,  viz.:  Is  a  State  suable  by  individual  citizens 
of  another  State?  It  is  said  that  Georgia  refuses 
to  appear  and  answer  to  the  Plaintiff  in  this 
action,  because  she  is  a  sovereign  State,  and  there- 
fore not  liable  to  such  action."  He  held  that  a 
State  of  the  Union  was  suable  by  a  citizen  of 
another  State.  With  him  agreed  Justices  Blair, 
Wilson  and  Cushing,  while  Justice  Iredell  was 
opposed  to  a  construction  of  the  Constitution 
which  would  "admit,  under  any  circumstances, 
a  compulsive  suit  against  a  State  for  the  recovery 
of  money." 

The  Court  ordered  the  plaintiff  to  file  his 
declaration,  copies  of  which  were  to  be  served  by 
the  Tribunal  on  the  Governor  and  the  Attorney- 
General  of  Georgia  by  or  before  the  following  June, 
and   that   unless   the    State   appeared   or   showed 


THE    UNITED    STATES    SUPREME    COURT.  35 

cause  to  the  contrary  to  the  Court  by  the  first 
day  of  the  next  term,  judgment  by  default  would 
be  entered  against  the  State  of  Georgia. 

As  none  of  the  other  States  of  the  Union,  how- 
ever, relished  the  idea  of  being  brought  as  Georgia 
had  been,  to  the  bar  of  the  United  States  Supreme 
Court  by  a  citizen  of  another  State,  the  eleventh 
amendment  to  the  Federal  Constitution,  expressly 
to  overcome  for  the  futvure  the  results  of  that  deci- 
sion, was  added  in  January,  1798,  having  been  on 
the  eighth  of  that  month  ratified  by  three-fourths 
of  the  States  of  the  Union.  That  amendment  pro- 
hibited the  judicial  power  of  the  United  States 
entertaining  suits  begun  against  a  State  of  the 
Union  by  the  citizens  of  another  State  or  by  the 
citizens  of  a  foreign  State.  The  writ  of  enquiry 
awarded  to  the  plaintiff  in  Chisholm  vs.  Georgia 
was  not  sued  out,  and  so  that  cause  as  well  as  all 
other  suits  by  individuals  against  States  that  were 
pending,  were  swept  away  from  the  records  of  the 
Court  by  the  eleventh  amendment  to  the  Federal 
Constitution  "agreeably  to  the  unanimous  deter- 
mination of  the  Judges,  in  HoUingsworth  et  al.  vs. 
Virginia,  argued  at  February  term,  1798."  It  is 
altogether  probable  that  the  authorities  of  South 
Carolina  persuaded  Chisholm,  a  South  Carolinian, 


36  A    WORLD    COURT    IN    THE    LIGHT    OF 

not  to  sue  out  the  writ  under  the  decision  in  Chis- 
holm  vs.  Georgia. 

When  the  Supreme  Court  of  the  United  States 
was  organized  under  the  Constitution,  with  John 
Jay  of  New  York  as  Chief  Justice  and  four  asso- 
ciate Justices,  at  first  it  had  not  much  to  do.  How- 
ever, slowly,  cases  came  to  its  bar,  and  it  asserted, 
with  John  Marshall  as  its  Chief  Justice,  its  right 
to  exist  as  a  separate  and  co-ordinate  branch  of  the 
Government  by  the  side  of  the  Legislative  (Con- 
gress) and  the  Executive  (President)  departments. 
The  Court  decided  whether  the  laws  passed  by  the 
Congress  were  legal  under  the  Constitution,  and  so 
whether  it  was  lawful  for  the  President  or  Executive 
department  to  carry  such  laws  into  effect,  or  whether 
they  were  void  according  to  the  spirit  and  mean- 
ing of  the  Constitution  and  so  of  no  avail. 

In  the  famous  case  of  Marbury  vs.  Madison, 
Chief  Justice  Marshall,  in  delivering  the  opinion 
of  the  Supreme  Court,  gave  a  clear  and  lucid  expo- 
sition of  the  juxtaposition  of  the  three  great  depart- 
ments of  government  to  one  another  within  the 
meaning  of  the  Constitution.    He  said  :^' 

"The  powers  of  the  legislature  are  defined,  and 
limited;  and  that  these  limits  may  not  be  mistaken, 

*'  I  Cranch,  Untied  Slaies  Supreme  Court  Reports,  page  176. 


THE    UNITED   STATES    SUPREME    COURT.  37 

or  forgotten,  the  Constitution  is  written.  To  what 
purpose  are  powers  limited,  and  to  what  purpose  is 
that  Hmitation  committed  to  writing,  if  these  limits 
may,  at  any  time,  be  passed  by  those  intended  to  be 
restrained?  The  distinction,  between  a  government 
with  limited  and  unlimited  powers,  is  abolished,  if 
those  limits  do  not  confine  the  person  on  whom  they 
are  imposed,  and  if  acts  prohibited  and  acts  allowed, 
are  of  equal  obligation.  It  is  a  proposition  too 
plain  to  be  contested,  that  the  constitution  controls 
any  legislative  act  repugnant  to  it ;  or,  that  the  legis- 
lature may  alter  the  constitution  by  an  ordinary  act. 

"Between  these  alternatives  there  is  no  middle 
ground.  The  constitution  is  either  a  superior, 
paramount  law,  unchangeable  by  ordinary  means, 
or  it  is  on  a  level  with  ordinary  legislative  acts,  and 
like  other  acts,  is  alterable  when  the  legislature 
shall  please  to  alter  it. 

"If  the  former  part  of  the  alternative  be  true, 
then  a  legislative  act  contrary  to  the  constitution 
is  not  law;  if  the  latter  part  be  true,  then  written 
constitutions  are  absurd  attempts  on  the  part  of  the 
people,  to  limit  a  power,  in  its  own  nature  illimitable. " 

The  Federal  covirts  have  the  right  and  it  is  their 
duty  to  judge  whether  laws  passed  by  Congress  are 
constitutional  or  not. 


38  A   WORLD   COURT    IN   THE    LIGHT   OF 

Marshall  ended  by  saying  "that  a  law  repugnant 
to  the  constitution  is  void;  and  that  courts,  as  well 
as  other  departments,  are  bound  by  that  instru- 
ment. "'^^ 

A  custom  had  grown  up  and  existed,  as  we  have 
seen,  among  the  English-speaking  North  American 
colonies  of  sending  their  boundary  disputes  across 
the  Atlantic  for  final  settlement  to  the  home  govern- 
ment, an  authority  which  was  supreme  over  all  the 
colonies  as  well  as  independent  of  them  until  the 
colonies  began  in  1775  their  revolt,  which  resulted 
in  the  winning  of  their  complete  independence. 
In  that  manner,  gradually  the  ground  was  prepared 
for  the  creation,  under  the  Articles  of  Confederation 
of  the  United  States  of  America,  for  the  setting  up 
ad  hoc  of  Inter-State  Tribunals,  and  subsequently, 
under  the  Constitution  of  1789,  the  establishment 
of  a  Supreme  Federal  Tribunal  which  should  be 
independent  of  the  other  co-ordinate  branches  of  the 
proposed  new  Federal  Government  and  also 
empowered  to  judge  the  legality  or  constitutionality 
of  the  laws  which  the  legislative  body  of  the  new 
government  might  enact  or  the  manner  in  which  the 
executive  branch  of  that  government  might  attempt 

'^  I  Cranch,  UniUd  States  Supremt  Court  Reports,  page  180. 


THE    UNITED    STATES    SUPREME    COURT.  39 

to  execute  those  laws,  as  well  as  to  judge  between 
the  individual  States. 

In  August  term,  1799,  the  State  of  New  York 
brought  suit  in  the  Supreme  Court  of  the  United 
States  against  the  State  of  Connecticut  for  the 
purpose  of  establishing  the  title  of  the  former  com- 
monwealth to  a  tract  of  land  which  it  claimed  under 
an  agreement  entered  into  between  New  York  and 
Connecticut  on  November  28th,  1683.  The  suit 
was  to  enforce  the  specific  performance  of  the 
agreement.  The  case  was  settled  without  a  decision 
being  given  on  the  legal  merits  of  the  controversy. 
Of  New  York  vs.  Connecticut,  Justice  Baldwin  in 
1838  said  it  was  held  in  1799  "that  though  a  State 
could  not  sue  at  law,  for  an  incorporeal  right,  as 
that  of  sovereignty  and  jurisdiction,  there  was  no 
reason  why  a  remedy  could  not  be  had  in  equity." 

It  was  not,  however,  apparently  until  more  than 
a  generation  after  the  Tribunal  was  instituted  that 
a  case  of  difference  between  two  of  the  States  of  the 
Union  was  started  on  its  way  to  the  Supreme 
Federal  Tribunal.  New  Jersey  and  New  York 
disagreed  as  to  their  boundary  line,  and  the  former 
of  those  two  States  filed  a  bill  in  1831  before  the 
Supreme  Court  of  the  United  States  against  the 

^'  3  Dallas,  page  413,  for  the  original  case. 


40  A    WORLD   COURT   IN  THE   LIGHT   OP 

State  of  New  York  with  the  object  of  ascertaining 
and  deciding  the  frontier  line  dividing  the  two 
commonwealths.^  The  opinion  of  the  Court  was 
given  by  Chief  Justice  Marshall,  and  the  Tribunal 
held  that  if  after  service  of  process  had  been  made 
by  New  Jersey  upon  the  Governor  or  Attorney- 
General  of  New  York,  and  the  latter  commonwealth 
had  failed  to  respond  within  sixty  days,  New  Jersey 
could  appear,  through  her  properly  constituted  legal 
representatives,  before  the  Coiut  and  proceed  ex- 
par  le.  Before  the  case  came  to  a  final  decree. 
New  York  compromised  the  dispute  with  New 
Jersey  to  the  satisfaction  of  the  latter  State,  but  the 
rule  of  procedure  then  established  has  since  been 
followed. 

Hardly  had  New  Jersey  and  New  York  settled 
their  frontier  dispute  out  of  court,  than  a  new  con- 
tested boundary  case  between  two  States  was 
brought  to  the  bar  of  the  Federal  Supreme  Court. 

It  was  in  March,  1832,  that  began  the  long  drawn 
out  and  stoutly  contested  case  of  the  State  of  Rhode 
Island  and  Providence  Plantations,  complainants, 
vs.  the  Commonwealth  of  Massachusetts,  defendant. 
Rhode  Island  brought  suit  on  March  i6th,  1832,  in 

**  New  Jersey  vs.  New  York,  5  Peters;    Vnilcd  Stales  Suprrme 
Court  Reports,  1831,  page  284. 


THE   UNITED   STATES   SUPREME   COURT.  41 

the  Supreme  Court  of  the  United  States,  against 
Massachusetts  in  order  to  have  the  boundary  or 
frontier  Hne  between  the  two  commonwealths 
settled  by  a  judicial  decision.^''  The  case  was  not 
finally  decided  until  January,  1846.  Daniel  Webster 
was  the  leading  counsel  for  Massachusetts  and  Mr. 
Hazard  for  Rhode  Island.  The  two  States  claimed 
the  land  in  dispute  under  various  royal  charters 
granted  by  the  Crown  of  England.  Rhode  Island 
also  advanced  a  right  in  virtue  of  grants  from  the 
Indians.  Controversies  existed  over  the  boundary 
between  the  two  colonies  at  an  early  period  in  their 
history.  The  contention  between  the  two  States 
was  whether  a  line  run  in  1642  by  two  surveyors, 
named  Woodward  and  Saffrey,  was  the  true  divi- 
sional line  between  the  two  commonwealths  as 
Massachusetts  claimed,  or  whether  it  should  be 
moved  about  foiir  miles  further  north  as  Rhode 
Island  contended.  As  Massachusetts  was  in  posses- 
sion of  the  territory  in  dispute,  Rhode  Island 
appealed  as  complainants  to  the  equity  side  of  the 
Coiart  that  "the  northern  boundary  line  between  the 
complainants  and  the  State  of  Massachusetts  may, 

^^  The  United  States  Supreme  Court  Reports,  12  Peters,  page  657; 
li  Peters,  page  23;  14  Peters,  page  210;  15  Peters,  page  233;  4 
Howard,  page  591. 


42  A    WORLD   COURT   IN  THE   LIGHT   OF 

by  the  order  and  decree  of  this  honorable  Court, 
be  ascertained  and  estabUshed;  and  that  the  rights 
of  jurisdiction  and  sovereignty  of  the  complainants" 
might  be  restored  and  confirmed  to  them.** 

On  the  part  of  Massachusetts,  it  was  pressed  in 
the  argument  of  counsel  that  the  Court,  under  the 
Constitution,  did  not  possess  jurisdiction  over  all 
cases  between  the  States  but  only  "controversies;" 
and  that  a  disputed  boundary  question,  where 
sovereignty  and  not  merely  title  was  involved,  lay 
outside  of  the  jurisdiction  of  the  Tribunal. 

At  the  January  term,  1838,  of  the  Court,  Justice 
Baldwin  delivering  the  opinion  of  the  Tribunal,  held 
that  the  word  "controversies"  applied  to  all  disputes 
or  controversies  between  the  States,  and  that  con- 
sequently the  Court  had  jurisdiction  in  the  case  at 
bar.  Referring  to  the  argument  urged  on  behalf  of 
Massachusetts  that  the  controversy  was  a  political 
and  not  a  judicial  question,  Justice  Baldwin  said: 
"It  is  said,  that  this  is  a  political,  not  a  civil  con- 
troversy between  the  parties;  and  so  not  within  the 
Constitution,  or  thirteenth  section  of  the  judiciary 
act."  In  the  view  of  the  Court,  the  controversy  was 
over  either  the  locality  of  a  point  three  miles  south 
of  a  certain  river,  or  whether  a  certain  point  was  the 

*•  12  Peters,  Utiiled  Stales  Supreme  Court  Reports,  page  665. 


THE    UNITED    STATES    SUPREME    COURT.  43 

' '  true  point  from  which  to  run  an  east  and  west  line, " 
as  the  agreed  boundary  between  the  two  colonies  or 
States.  "In  the  first  aspect  of  the  cases,  it  depends 
on  a  fact;  in  the  second,  on  the  law  of  equity, 
whether  the  agreement  is  void  or  valid:  neither  of 
which  present  a  political  controversy,  but  one  of  an 
ordinary  judicial  nature,  of  frequent  occurrence  in 
suits  between  individuals.  This  controversy,  then, 
cannot  be  a  political  one."  The  Court,  therefore, 
decided  against  the  plea  of  Massachusetts  that  the 
Tribunal  had  not  jurisdiction  according  to  the  grant 
of  the  Constitution,  and  the  case  went  on  to  be  tried 
on  the  merits  of  the  proper  location  of  the  frontier 
between  the  two  States  which  had  appeared  through 
counsel  before  the  bar  of  the  Supreme  Court. 

From  this  ruling  the  Chief  Justice  of  the  Tribunal, 
Roger  Brooke  Taney,  dissented.  He  held  that  the 
case  was  political,  not  judicial,  in  character,  and  that 
the  Court  did  not  have  jurisdiction. 

"The  powers  given  to  the  Courts  of  the  United 
States  by  the  Constitution,"  that  great  Judge  said, 
"are  judicial  powers;  and  extend  to  those  subjects, 
only,  which  are  judicial  in  their  character;  and  not 
to  those  which  are  political.     *     *     * 

"  Contests  for  rights  of  sovereignty  and  jurisdiction 
between  States  over  any  particular  territory,  are  not, 


44  A    WORLD   COURT    IN   THE    LIGHT   OP 

in  my  judgment,  the  subject  of  judicial  cognizance 
and  control,  to  be  recovered  and  enforced  in  an  ordi- 
nary suit;  and  are,  therefore,  not  within  the  grant 
of  judicial  power  contained  in  the  Constitution." 
The  Supreme  Court  of  the  United  States  having 
determined  that  it  possessed  the  right  to  decide  the 
difference  between  Rhode  Island  and  Massachu- 
setts concerning  the  boundary  or  frontier  that 
separated  their  respective  territories  over  which 
they  could  exercise  and  maintain  sovereign  author- 
ity, the  case  was  thereafter  argued  by  the  most 
eminent  of  counsel  upon  the  merits  of  the  boundary 
question  itself  before  the  Court.  Finally  at  Jan- 
uary term,  1846,  the  Court,  Justice  McLean  deliv- 
ering the  opinion  of  the  Tribunal,  sustained  the 
contention  of  Massachusetts  as  to  the  possession  of 
the  long  strip  of  territory  over  which  the  dispute 
had  arisen  between  the  two  States.  A  disagree- 
ment, which  had  lasted  between  two  Common- 
wealths for  well  over  a  century,  was  thus  peacefully 
settled  by  a  judicial  decision  based  upon  legal 
grovmds.  A  great  precedent  and  step  forward  was 
thus  estabhshed  in  the  settlement  of  disputes 
between  the  member  States  of  the  North  American 
Union  by  judicial  decisions  instead  of  by  an  appeal 
to  armed  combat. 


THE   UNITED   STATES   SUPREME   COURT.  45 

As  the  first  great  question  decided  by  the  United 
States  Supreme  Court  between  two  of  the  member 
States  of  the  North  American  Union,  the  case  of 
Rhode  Island  vs.  Massachusetts  may,  in  some 
important  respects,  be  compared  in  the  sphere  of 
the  United  States  of  America,  with  the  submission 
of  the  Alabama  Claims  case  to  the  Geneva  Tribunal, 
the  first  regtdarly  constituted  International  Judicial 
Tribunal,  in  the  domain  of  the  family  of  Nations. 

Following  the  final  settlement  by  the  Cotirt  of 
the  contention  between  Rhode  Island  and  Massa- 
chusetts over  the  proper  location  of  the  divisional 
line  between  those  two  commonwealths,  other  dis- 
puted frontier  cases  between  two  of  the  member 
States  of  the  Union  were  brought  to  the  bar  of  the 
Federal  Supreme  Court  for  final  decision  and 
settlement. 

Then  there  began  to  be  referred  for  settlement  to 
that  high  Court  an  increasingly  long  list  of  cases 
of  disagreement  between  two  of  the  member  States 
of  the  Union.  These  cases  have  involved  matters 
of  various  interest. 


46  A    WORLD    COURT    IN    THE    LIGHT    OF 


PART   III. 

In  January  term,  1849,  a  dispute  over  the 
northern  boundary  of  the  State  of  Missouri  and  the 
southern  Une  of  the  State  of  Iowa  was  tried  by  the 
Supreme  Court  of  the  United  States.'^  The  opinion 
turned  upon  the  proper  interpretation  of  some 
treaties  between  the  United  States  Government 
and  some  Indian  tribes,  the  Great  and  the  Little 
Osage  Nations,  and  the  existence  of  certain  alleged 
rapids  in  the  Des  Moines  River. 

Ten  years  later  the  State  of  Alabama  brought 
suit  in  the  Supreme  Federal  Tribunal  against  her 
sister  State,  Georgia,  over  their  mutual  boundary 
line.**  Alabama  claimed  to  low  water  on  the  western 
bank  of  the  Chattahoochee  River,  while  Georgia 
asserted  her  sovereignty  extended  to  high  water  on 
the  western  side  of  the  river.  The  decision  turned 
in  part  upon  the  definition  of  what  was  meant  by 
the  word  "River." 

In    1870   the   same   high   Court   tried   the   con- 

*^  Missouri  vs.  Iowa:     7  Howard's  United  Slates  Supreme  Court 
Reports,  page  660. 

**  The  State  of  Alabama  %'s.  the  State  of  Georgia:  23  Howard's 
United  Slates  Supreme  Court  Reports,  1859,  page  505. 


THE   UNITED   STATES   SUPREME   COURT.  47 

troversy  between  the  States  of  Missouri  and  Ken- 
tucky over  the  possession  of  Wolf  Island  in  the 
Mississippi.^^  After  a  careful  consideration  of  the 
evidence  adduced  by  the  two  States,  the  judgment 
of  the  Tribunal  was  in  favor  of  Kentucky. 

In  1889  Indiana  brought  a  suit  in  equity  against 
Kentucky  "to  settle  and  determine  the  boundary 
line  between"  the  two  States.'*"  The  dispute  was 
over  the  possession  of  an  island  on  the  north  side 
of  the  Ohio  River,  about  five  miles  long  and  more 
than  a  mile  wide,  with  an  area  of  about  two  thousand 
acres.  In  defense  to  the  suit  of  Indiana,  Kentucky 
claimed  that  Virginia  had  passed  an  Act  in  1783 
in  her  legislature  whereby  Virginia  empowered  her 
delegates  in  Congress  to  convey  to  the  United  States 
all  Virginia's  rights  "to  the  territory  or  tract  of 
country  within  the  limits  of  the  Virginia  charter, 
situate,  lying  and  being  to  the  northwest  of  the 
river  Ohio."  Kentucky  further  asserted  that  on 
March  ist,  1784,  the  delegates  of  Virginia  in  the 
Congress  of  the  Confederation  executed  a  formal 
deed  giving  to  the  United  States  all  the  rights  of 

*®  Missouri  vs.   Kentucky:     ii   Wallace's   United  Slates  Supreme 
Court  Reports,  1870,  page  395. 

*"  Indiana  vs.  Kentucky:     136  United  States  Supreme  Court  Reports, 
1889,  page  I. 


48  A    WORLD   COURT    IN   THE    LIGHT   OP 

sovereignty,  etc.,  of  Virginia  in  the  territory  "situate 
lying  and  being  to  the  northwest  of  the  Ohio." 
Indiana  was  admitted  as  a  State  of  the  United 
States  many  years  subsequently  to  the  admission 
of  Kentucky  as  a  State.  The  opinion  of  the 
Tribunal  was  in  favor  of  Kentucky. 

The  boundary  case  of  Virginia  vs.  Tennessee  was 
heard  in  1892  and  decided  in  1893."  The  judg- 
ment of  the  Tribunal  gave  an  exhaustive  historical 
review  of  the  claims  advanced  by  the  two  con- 
tending States,  and  looked  at  the  case  from  many 
points  of  view.  In  reference  to  prescription,  quota- 
tions were  given  in  the  opinion  from  such  well 
known  writers  on  the  Law  between  Nations  as 
Vattel  and  Wharton.  The  judgment  was  in  favor 
of  the  claims  of  Tennessee. 

In  1904,  the  Federal  Supreme  Court  handed  down 
a  decision  in  the  case  of  Missouri  vs.  Nebraska." 
The  facts  briefly  were  as  follows.  From  the  time 
the  two  States  were  admitted  into  the  Union  until 
1867,  the  course  of  the  Missouri  River  where  it 
was  the  boimdary  between   the   two  States    had 

*'  Virginia  vs.  Tennessee:  148  United  Slates  Supreme  Court  Reports, 
page  S03. 

*^  Missouri  vs.  Nebraska:  196  United  Slates  Supreme  Court  Reports, 
1904,  page  23. 


THE   UNITED   STATES   SUPREME   COURT.  49 

changed  its  course  by  only  such  variations  as 
naturally  followed  in  the  passage  of  time  from  one 
side  of  the  stream  to  the  other.  But  on  July  5th, 
1867,  within  a  period  of  twenty-four  hours  and 
during  a  flood,  the  river  which  up  to  that  time  for 
years  back  had  passed  round  McKissick's  Island, 
cut  for  itself  a  new  channel  about  half  a  mile  wide 
across  land  which  then  belonged  to  Nebraska. 
After  this  change  in  the  course  of  the  river,  the 
Missouri  ceased  flowing  round  McKissick's  Island, 
the  old  channel  dried  up  and  this  sudden  change 
in  the  course  of  the  river  became  permanent.  As 
a  consequence,  land  which  before  this  change  in  the 
Missouri's  course  was  west  of  the  river,  thereafter 
was  east  of  the  river.  Did  this  sudden  and  continu- 
ing change  in  the  course  of  the  Missouri  River  make 
a  change  in  the  boundary  line  between  the  two 
States?  The  Tribunal  held  the  boundary  between 
Missouri  and  Nebraska  was  not  changed  but  re- 
mained as  it  was  before  the  avulsion  and  that  the 
land  in  dispute  continued  to  form  part  of  Nebraska. 
In  1905,  Chief  Justice  Fuller  handed  down  the 
opinion  of  the  Supreme  Coiut  of  the  United  States 
in  the  frontier  case  of  Louisiana  vs.  Mississippi.*^ 

*^  Louisiana   vs.    Mississippi:     202    Untied  Stales   Supreme   Court 
Reports,  1905,  page  i. 


50  A   WORLD  COURT   IN  THE  LIGHT  OP 

The  two  States  clashed  over  their  boundary,  because 
they  both  wished  to  possess  valuable  oyster  beds; 
and  the  oyster  legislation  of  the  two  States  led  to  a 
conflict  between  their  respective  authorities.  The 
Court  applied  the  doctrine  of  the  thalweg  to  the  case, 
saying  that  the  word  had  been  taken  over  into  many 
languages.  The  Chief  Justice  referred  in  his  opinion 
to  the  San  Juan  Water  Frontier  decision,  the 
Alaskan  Boundary  case,  and  Lord  Stowell's  judg- 
ment in  the  case  of  The  Anna  (1805). 

In  1908  in  the  case  of  Missouri  vs.  Kansas,  the 
Supreme  Federal  Tribunal  held  that,  notwithstand- 
ing the  gradually  changing  position  of  the  Missouri 
River,  the  middle  of  that  stream  was  the  proper 
boundary  between  the  two  States;  and  further  that 
an  island  in  the  Missouri  River  lying  west  of  its  main 
channel  as  it  then  existed  at  the  time  the  case  was 
heard,  belonged  to  Kansas,  even  though  that  same 
island  was  situated  to  the  east  of  the  original 
boundary  line  that  divided  the  two  States.'" 

The  boundary  case  of  Washington  vs.  Oregon, 
was  decided  in   1908.**     There  were  and  are  two 

**  Missouri  vs.  Kansas:     213  United  Slates  Supreme  Court  Reports 
J  908,  page  78. 

"Washington    vs.    Oregon:     an     United    States    Supreme    Court 
Reports,  1908,  page  127;   ibid,  Volume  214,  page  205. 


THE    UNITED    STATES    SUPREME    COURT.  51 

channels  at  the  entrance  of  the  Columbia  River. 
The  act  admitting  Oregon  as  a  State  of  the  Union 
provided  for  a  boundary  passing  through  the  middle 
of  the  north  channel.  Subsequently,  the  State  of 
Washington,  some  years  after  its  admission  as  a 
State,  contended  that  the  boundary  should  pass 
through  the  southern  of  the  two  channels,  as  it 
had  then  become  the  main  or  most  important  channel 
at  the  mouth  of  the  Columbia  River.  The  Court 
upheld  the  contention  of  Oregon. 

The  disputed  frontier  of  Maryland  vs.  West 
Virginia  was  tried  in  1909  by  the  Court  sitting  in 
Equity.'*®  In  substance  in  this  case  the  Tribunal 
decided  that  a  boundary  which  has  been  accepted 
as  the  frontier  for  a  century  or  so  between  two  of  the 
member  States  of  the  Union  should  be  maintained 
for  the  future,  even  though  it  might  not  have  been 
correctly  run  according  to  astronomical  calculations. 

The  eleventh  amendment  to  the  United  States 
Constitution  provided  that  the  judicial  power  of  the 
United  States  should  not  extend  to  suits  by  private 
citizens  against  a  member  State  of  the   Union.*^ 

*' Maryland  vs.  West  Virginia:     In  Eqmty.     217    United  States 
Supreme  Court  Reports. 

*^  New  Hampshire  vs.  Louisiana  and  others:  New  York  vs. 
Louisiana  and  others:     108  United  States  Supreme  Court  Reports,  1882, 


52  A    WORLD   COURT    IN   THE    LIGHT   OF 

Nevertheless  enterprising  individuals  attempted  to 
bring  such  suits. 

In  1882  some  citizens  of  New  Hampshire  and  New 
York,  the  owners  of  Louisiana  State  bonds  upon 
which  they  could  not  collect  the  interest,  tried,  with 
the  aid  of  their  respective  States,  to  assign  their 
bonds  to  their  respective  States,  with  the  object 
that  the  latter  would  bring  suit  in  their  own  names. 
The  two  State  Legislatures  obligingly  complied. 
The  Supreme  Court  of  the  United  States,  however, 
held,  that  in  view  of  the  eleventh  amendment  a 
member  State  of  the  United  States  cannot  create  a 
controversy  with  a  sister  State  by  taking  upon  itself 
the  recovery  of  debts  owing  to  its  own  citizens  by 
the  other  State. 

The  above  plan  having  failed,  some  individuals 
who  held  about  two  hundred  and  fifty  bonds  of 
South  Carolina  upon  which  they  were  unable  to 
recover,  made  an  outright  gift  of  ten  of  those 
bonds  to  the  State  of  South  Dakota.**  That 
State  sued  its  sister  State,  and  gained  judgment 

page  76.  The  eleventh  amendment  which  went  into  effect  January 
8th,  1798,  reads:  "The  judicial  power  of  the  United  States  shall 
not  be  construed  to  extend  to  any  suit  in  law  or  equity,  commenced 
or  prosecuted  against  one  of  the  United  States  by  citizens  of  another 
State,  or  by  citizens  and  subjects  of  any  foreign  State." 

*'  108  Untied  Slates  Supreme  Court  Reports. 


THE    UNITED    STATES    SUPREME    COURT.  53 

for  the  ten  bonds.*'  But  the  Court  held  that  the 
individuals  were  not  helped  thereby  to  recover 
about  two  hundred  and  forty  other  bonds.  As 
to  the  right  of  South  Dakota  to  recover,  the 
Tribunal  was  divided.  Five  justices  held  that 
South  Dakota  could  recover,  while  four  were  of 
the  opinion  that,  in  view  of  the  eleventh  amend- 
ment, she  could  not  recover. 

Questions  of  disputes  arising  between  mem- 
ber States  of  the  Union  over  the  right  to  control 
the  use  of  water  courses  have  been  submitted 
to  and  decided  by  the  Federal  Supreme  Court. 
Such  a  case  was  that  of  Kansas  vs.  Colorado.®" 
In  that  case  Kansas  brought  suit  to  enjoin  Col- 
orado from  absorbing  to  the  use  of  the  inhabitants 
of  the  latter  State  the  waters  of  the  Arkansas 
River,  which,  taking  its  source  in  the  Rocky  Moun- 
tains in  the  State  of  Colorado,  flows  through 
Colorado  on  into  the  State  of  Kansas  where  it 
becomes  a  navigable  stream  suitable  for  the  pur- 
poses of  communication  and  commercial  dealings. 
Kansas  maintained  that  Colorado  was  using  more 

*' South  Dakota  vs.  South  Carolina:     192  United  Stales  Supreme 
Court  Reports,  1903,  page  286. 

^  State  of  Kansas  vs.  State  of  Colorado:     185  United  States  Supreme 
Court  Reports,  page  125;  ibid.  Volume  206,  page  406. 


54  A    WORLD   COURT   IN   THE    LIGHT   OP 

than  her  proper  share  of  the  waters  of  the  Arkansas 
River  for  purposes  of  irrigation  and  in  time  would 
absorb  it  all  and  ruin  the  river  for  navigation  in 
Kansas.  The  Tribunal  sustained  its  jurisdiction 
in  the  case.  On  the  merits,  however,  the  decision 
was  against  Kansas,  without  prejudice  either  to 
another  suit  or  to  the  Federal  Government  to 
preserve  and  control  the  rights  of  navigation. 
-  Another  case  involving  rights  in  water  courses 
was  the  suit  brought  by  Missouri  against  Illinois 
and  the  Sanitary  District  of  Chicago.*'  In  this 
case  the  authorities  of  Chicago  built  a  drainage 
canal  from  Lake  Michigan  to  a  river  flowing  into 
the  Mississippi  River.  Their  object  was  to  have 
the  sewage  of  Chicago,  which  formerly  was  ejected 
into  Lake  Michigan,  thereafter  carried  off'  and 
discharged  into  the  Mississippi  River.  The  case 
was  tried  twice  by  the  Court.  On  the  first  hearing 
the  Court  upheld  the  right  of  Missouri  to  bring 
suit  because  the  construction  of  the  canal  might 
be  a  cause  of  danger  to  the  well  being  of  the  people 
of  Missouri.  At  the  second  trial  of  the  case,  the 
Tribunal  held  that  Missouri  had  not  made  out  a 

"  Missouri  vs.  Illinois  and  the  Sanitary  District  of  Chicago,  180 
United  Slates  Supreme  Court  Reports,  page  jo8;  ibid,  Volume  aoo, 
page  496. 


THE   UNITED   STATES   SUPREME   COURT.  55 

case  that  this  drainage  was  dangerous  to  the  health 
of  her  citizens. 

The  Federal  Supreme  Court  has  construed 
broadly  its  original  jurisdiction  in  sustaining  suits 
by  States  against  the  citizens  of  another  State, 
thereby  extending  the  ramifications  leading  to 
possible  causes  of  conflict  in  the  interests  of  two 
or  more  States  over  which  the  Court  is  the  final 
judge  or  arbiter.  For  example  in  the  case  of 
Georgia  vs.  The  Tennessee  Copper  Company, 
Georgia  brought  suit  to  restrain  a  copper  company 
in  Tennessee  from  discharging  harmful  gases  from 
their  works  which  were  blown  by  the  winds  over 
the  territory  of  Georgia  to  the  detriment  of  prop- 
erty of  some  of  the  citizens  of  Georgia.®^  The 
Court  held  that,  as  on  "the  evidence  the  pollution 
of  the  air  and  the  magnitude  of  that  pollution" 
were  not  open  to  question,  after  allowing  the 
defendants  a  reasonable  time  to  control  the  fumes, 
an  injunction  against  their  works  would  be  issued. 

In  the  case  of  Louisiana  vs.  Texas,  however, 
jurisdiction  was  refused  by  the  Tribunal  on  the 
ground  that  the  case  was  rather  a  complaint  of 
some  individuals  in  New  Orleans  than  a  controversy 

°^  Georgia  vs.  Tennessee  Copper  Company,  206  United  States 
Supreme  Court  Reports,  1906,  page  236. 


56  A    WORLD   COURT    IN    THE    LIGHT    OF 

between  States.  The  suit  was  rather  Uke  a  case  of 
Private  International  Law  between  individuals  in- 
stead of  a  case  of  Public  International  Law  between 
States.*^  And  so  the  case  of  Louisiana  was  dis- 
missed. 

South  Carolina  vs.  Georgia  was  the  case  of  a  bill 
in  equity  filed  by  South  Carolina  asking  for  an  in- 
junction restraining  the  State  of  Georgia,  the 
Secretary  of  War  of  the  United  States,  the  Chief  of 
the  Corps  of  the  United  States  Engineers,  and  their 
agents  from  "obstructing  or  interrupting"  the 
navigation  of  the  Savannah  River,  in  violation  of  the 
compact  entered  into  by  the  States  of  South  Caro- 
lina and  Georgia  on  April  24th,  1787."  The  Court 
decided  that  the  power  to  regulate  the  navigation 
of  the  Savannah  River  had  passed  from  the  two 
States  upon  the  adoption  of  the  Constitution  to 
the  Federal  Government. 

In  1907,  Virginia  brought  suit  against  West 
Virginia  for  a  proper  division  of  the  debt  of  Virginia 
with  West  Virginia,"    Originally  West  Virginia  when 

"  Louisiana  vs.  Texas:  176  United  Staits  Supreme  Court  Reports, 
1899,  page  I. 

"  South  Carolina  vs.  Georgia,  93  United  States  Supreme  Court 
Reports,  1876,  page  4. 

**  Commonwealth  of  Virginia  vs.  State  of  West  Virginia:  209 
United  Slates  Supreme  Court  Reports,  1907,  page  514. 


THE   UNITED   STATES   SUPREME   COURT.  57 

she  became  a  State  had  agreed  to  assume  her  proper 
proportion  of  the  debt  of  Virginia  as  it  stood  in  1861, 
but  West  Virginia  had  never  carried  her  intention 
into  effect.  In  1908  the  Federal  Supreme  Court 
upheld  its  jurisdiction  in  the  case.  In  19 10  the  suit 
was  referred  to  a  master  and  was  then  brought 
before  the  Court,  which  decided  that  West  Virginia 
must  assume  her  share  of  the  debt  in  proportion  to 
the  basis  of  population  and  wealth  in  1863  of  what 
was  the  whole  State  of  Virginia  at  the  time  when 
West  Virginia  broke  off  and  became  a  separate 
State  of  the  Union.  The  two  States,  however,  were 
to  attempt  out  of  Court  to  decide  the  amount  of  the 
debt  which  West  Virginia  was  to  assume  as  her 
share,  before  asking  the  Court  to  decree  the  exact 
amount.^* 

A  review  of  the  above  cited  cases  shows  that  the 
highest  Federal  Court  of  the  American  Union  has 
been  called  upon  to  decide,  and  has  decided  cases  of 
disagreement  between  States  of  the  Union  that 
involved  questions  of  boundary  between  the  States; 
the  regulation  of  water  courses  which,  taking  their 
rise  in  one  State  passed  lower  down  in  their  course 
into  and  through  the  land  of  another  Commonwealth ; 

^*  Commonwealth  of  Virginia  vs.  State  of  West  Virginia:  220 
United  States  Supreme  Court  Reports,  1911,  page  i. 


S8  A    WORLD   COXJRT   IN  THE   LIGHT   OF 

the  regulation  of  the  discharge  of  sewage  by  one 
State  so  that  one  of  her  sister  States  complained  that 
it  was  a  detriment  of  the  latter's  interest;  the 
enjoining  of  nuisances  in  neighboring  common- 
wealths; finding  out  and  apportioning  in  an  equit- 
able proportion  public  or  State  debts;  and  other 
subjects  involving  the  interests  of  the  inhabitants  of 
two  States. 


PART   IV. 

While  it  is  apparent  from  the  many  cases 
examined  above  that  the  United  States  Supreme 
Court  has  successfully  decided  and  by  its  decisions 
settled  in  peace  many  controversies  between  two  of 
the  member  States  of  the  Union  which  otherwise 
might  have  resulted  in  war  between  the  contestants, 
it  must  not  be  forgotten  that  all  was  not  smooth 
sailing  in  the  effort  of  the  United  States  to  prevent 
strife  between  its  individual  member  States.  A 
few  cases  of  difference  arose  which  threatened  to 
bring  on  an  armed  contest  between  the  United 
States  and  one  of  its  member  States;  and  one 
controversy  at  least  almost  precipitated  an  armed 
conflict  between  one  of  the  member  States  of  the 


THE   UNITED   STATES   SUPREME   COURT.  59 

Union  and  a  Territory  which  was  an  applicant  for 
full  statehood  within  the  Union. 

In  September,  1778,  a  British  war  vessel  captured 
Gideon  Olmstead  of  Connecticut  and  three  other 
American  fishermen  near  Cape  Charles  and  took 
them  to  Jamaica.  Placed  there  on  the  Sloop  Active 
laden  with  a  cargo  of  arms  and  other  supplies 
for  the  British  army,  they  were  forced  to  aid 
in  navigating  the  vessel  to  New  York.  One  night 
the  opportunity  came  to  Olmstead  and  his  three 
companions  to  seize  possession  of  the  vessel,  where- 
upon they  steered  for  Little  Egg  Harbor,  New 
Jersey.  When  the  Active  was  in  full  sight  of  the 
New  Jersey  coast,  an  armed  brig  equipped  and 
commissioned  by  the  State  of  Pennsylvania,  the 
Convention,  pursued  and  by  force,  against  the  pro- 
test of  Olmstead,  captured  the  Active,  took  her  into 
the  port  of  Philadelphia,  and  there  Captain  Thomas 
Houston  of  the  brig  claimed  the  Active  as  his  prize 
of  war.  Another  privateer,  Le  Gerard,  which  was 
in  sight  when  the  Convention  took  Olmstead  and  his 
prize,  also  claimed  a  share  of  the  prize  money  as 
Le  Gerard  was  acting  in  conjunction  with  the 
Convention. ^^ 

*^  Hampton  L.  Carson:    The  case  of  the  Sloop  "Active:"    The  Green 
Bag:    Boston,  1895,  Volume  VII.,  page  17. 


60  A    WORLD    COURT    IN    THE    LIGHT    OF 

The  case  was  tried  before  Judge  Ross,  a  signer  of 
the  Declaration  of  Independence,  and  a  jury.  The 
jury  of  the  State  Court  decided  that  only  one  fourth 
of  the  prize  money  should  go  to  Olmstcad,  while 
the  remaining  three  fourths  they  divided  between 
the  State  of  Pennsylvania,  the  owners  of  the  priva- 
teers, and  the  officers  and  crews  of  the  Convention 
and  Le  Gerard.  The  Judge,  who  was  bound  by  the 
local  law  which  gave  the  jury  the  right  to  decide 
the  facts,  showed  his  sympathy  for  Olmstead  and 
his  associates.  The  latter  promptly  appealed  to 
Congress. 

By  Congress,  which  was  then  sitting  in  the 
Pennsylvania  State  House,  the  case  was  referred  to 
its  standing  Committee  on  Appeals,  who  called 
themselves  "The  Court  of  Commissions  on  Appeal 
for  the  United  States  of  America."  After  hearing 
arguments  and  investigating,  the  Committee  decided, 
September  15th,  1778,  to  reverse  the  State  Court, 
directed  the  marshal  of  that  Court  to  sell  the  sloop 
and  cargo  and,  after  deducting  the  cost,  to  pay  the 
surplus  to  Olmstead  and  his  friends.  When  Judge 
Ross,  however,  called  on  the  marshal  to  pay  the 
money  into  the  Judge's  hands,  the  Commissioners 
realized  that  they  did  not  have  the  power  at  their 
backs  to  enable  them  to  enforce  their  judgment. 


THE   UNITED   STATES   SUPREME   COURT.  61 

And  so  they  said  wisely  they  would  wait  until  their 
powers  as  a  Tribunal  were  more  clearly  defined. 

"In  the  meantime,"  Mr.  Hampton  L.  Carson 
has  pointed  out,  "Judge  Ross  had,  with  great 
dignity  and  firmness,  placed  upon  the  records 
of  his  court  a  vindication  of  his  action,  alleging 
that  after  mature  consideration  he  was  of  opinion 
that  though  the  Court  of  Appeals  had  full  authority 
to  alter  or  set  aside  the  decree  of  a  Judge  upon  a 
pure  question  of  law,  yet  there  its  power  ended; 
that  the  verdict  of  the  jury  was  made  conclusive 
upon  the  facts  without  re-examination  or  appeal, 
under  the  terms  of  the  State  law  erecting  his  tri- 
bunal, and  he  would  submit  to  no  usurpation  of 
power." 

On  March  6th,  1779,  Congress  decided  by  a  vote 
of  21  to  6,  the  minority  consisting  of  the  five  dele- 
gates from  Pennsylvania  and  Witherspoon  of  New 
Jersey,  that  the  Committee  of  Congress  which  had 
heard  the  appeal  from  the  Pennsylvania  Court  in 
the  case  of  Olmstead,  had  the  power  and  was  duly 
constituted  to  hear  that  appeal.  On  the  other  side 
the  Legislative  Assembly  of  Pennsylvania  author- 
ized Judge  Ross  to  pay  over  the  money  which  he 
received  from  the  sale  of  the  cargo  and  sloop  to 
David  Rittenhouse,  the  State  Treasurer. 


62  A    WORLD   COURT    IN    THE    LIGHT    OF 

Time  passed,  and  the  Constitution  of  the  United 
States  was  composed  in  Philadelphia  in  the  same 
Pennsylvania  State  House  in  which  the  Declaration 
of  Independence  was  voted,  and  then  the  Consti- 
tution was  ratified  by  the  individual  States,  including 
Pennsylvania.  Section  two  of  article  three  of  the 
new  Constitution  gave  to  the  United  States  power 
over  all  cases  of  admiralty  and  maritime  jurisdiction. 
The  power  of  a  new  Nation  was  ready  now  to  take 
cognizance  of  the  case  of  Olmstead  and  his  asso- 
ciates. Finally,  after  a  number  of  years  had  passed, 
during  which  several  inconclusive  things  happened, 
Olmstead  appeared  in  1803  before  Judge  Peters  in 
the  United  States  District  (iourt  at  Philadelphia 
and  obtained  a  decree  against  the  daughters  and 
executrices  of  Rittenhouse.  Thereupon  the  Legis- 
lature of  Pennsylvania  passed  an  act  requiring 
Rittenhouse's  daughters  to  pay  over  the  funds  in 
dispute  to  the  State  Treasurer  and  requiring  the 
Governor  of  the  State  to  protect  their  persons 
and  property.  As  Mr.  Carson  has  shown  the 
apparent  contestants  in  the  case  were  a  man  of 
seventy-six  years  and  two  women  who  had  inherited 
the  suit  at  law;  but  the  real  contestants  were  the 
Commonwealth  of  Pennsylvania  and  the  United 
States  of  America.    Nothing  further  was  done  by 


THE   UNITED   STATES    SUPREME   COURT,  63 

Judge  Peters.  In  1808  Olmstead  appealed  to  the 
Supreme  Court  of  the  United  States.  Chief  Justice 
Marshall  issued  a  mandamus.  In  his  opinion  he 
said :  "If  the  Legislature  of  the  several  States  may 
at  will  annul  the  judgments  of  the  Courts  of  the 
United  States,  and  destroy  the  rights  acquired 
under  those  judgments,  the  Constitution  itself 
becomes  a  solemn  mockery,  and  the  Nation  is 
deprived  of  the  means  of  enforcing  its  laws  by  the 
instnimentality  of  its  own  tribunals.  So  fatal  a 
result  must  be  deprecated  by  all;  and  the  people  of 
Pennsylvania,  not  less  than  the  citizens  of  every 
other  State,  must  feel  a  deep  interest  in  resisting 
principles  so  destructive  of  the  Union  and  in  averting 
consequences  so  fatal  to  themselves.  *  *  *  The 
State  of  Pennsylvania  can  possess  no  Constitutional 
right  to  resist  the  legal  process  which  may  be  directed 
in  this  case," 

When  in  obedience  to  the  mandamus  granted  by 
the  United  States  Supreme  Court,  Judge  Peters 
issued  his  writ,  the  marshal  of  the  District  Court 
found  the  house  of  Rittenhouse's  daughters  at  Arch 
and  North  Seventh  Streets,  afterwards  known  as 
Fort  Rittenhouse,  surrounded  by  the  State  militia. 
Civil  war  seemed  a  possibility.  The  futility  of  one 
State  of  the  Union  standing  up  against  the  strength 


64  ,    A   WORLD   COURT   IN  THE   LIGHT   OP 

of  all  the  others,  however,  was  apparent,  and  in  the 
end  the  counsel  of  the  wise  men  of  Pennsylvania 
prevailed,  the  State  of  Pennsylvania  yielded  to 
the  Federal  Government,  and  in  the  end  Olmstead 
received  his  prize  money. 

A  dispute  which  threatened  about  1835  to  break 
loose  in  war  within  the  Union  was  the  disagreement 
between  the  State  of  Ohio  and  the  Territory  of 
Michigan  over  the  possession  of  a  strip  of  land 
which  included  the  port  of  Toledo  on  Lake  Erie.** 
In  this  case  the  Federal  Supreme  Court  was  not 
appealed  to.  As  Michigan  was  still  only  a  territory 
Congress  had  the  power  to  settle  the  matter.  There 
were  important  commercial  interests  at  stake  based 
on  geographical  grounds.  Ohio  especially  wished 
the  land  in  dispute  on  account  of  the  harbor  of 
Toledo  at  which  one  terminal  of  the  Ohio-Maumee 
Canal  was  situated.  Two  railroads  also  were  in 
process  of  building  in  Michigan  to  terminate  at 
Toledo.  In  addition  to  the  disputed  territory, 
Michigan  also  desired  admission  as  a  State  of  the 

•*  W.  V.  Way:  The  Facts  and  Historical  Events  oj  the  Toledo  War 
oj  iSjj;  Toledo,  Ohio,  1869.— Arthur  Meier  Schlesinger:  Basis  of 
The  Ohio-Michigan  Boundary  Dispute  in  The  Ohio-Michigan  Boundary^ 
Ohio,  1916,  Volume  I.,  page  59  et  seq. — Anna  May  Soule:  The 
Southern  and  Western  Boundaries  of  Michigan,  in  the  Michigan  Political 
Science  Association  Publications,  Volume  II.,  page  481. 


THE   UNITED   STATES   SUPREME   COURT.  65 

Union.  The  contest  which  began  to  become  acute 
in  1833  gradually  became  warmer,  until  by  1835  the 
armed  forces  of  the  State  of  Ohio  and  the  Territory 
of  Michigan  faced  each  other.  The  weight  of 
power  was  overwhelmingly  with  Ohio,  for  not  only 
was  her  population  much  larger  than  that  of  Michi- 
gan, but  also  the  States  of  Indiana  and  Illinois 
favored  her  contention,  since  if  the  decision  was 
against  Ohio,  Michigan  would  very  possibly  claim 
that  her  southern  frontier  should  be  run  farther 
south  than  was  actually  the  case,  thereby  giving 
her  land  in  the  possession  of  Indiana  and  Illinois 
respectively.  In  addition,  political  considerations 
favored  Ohio,  as  Ohio  was  a  doubtful  State,  while 
Michigan  was  surely  in  favor  of  the  Democratic 
Party.  President  Andrew  Jackson  told  the  Governor 
of  Ohio  he  would  use  the  forces  of  the  United  States 
against  Ohio  if  she  began  war  with  Michigan,  but  he 
told  the  Governor  at  the  same  time  that  he  would 
veto  any  act  of  Congress  that  admitted  Michigan 
as  a  State  before  the  boundary  question  was  settled. 
In  the  end  Michigan  was  admitted  to  the  Union 
June  15th,  1836,  but  the  territory  in  dispute  was 
given  by  Congress  to  Ohio.  As  a  quid  pro  quo  to 
Michigan,  Congress  gave  her  valuable  mineral  lands 
in  the  peninsula  between  Lake  Michigan  and  Lake 


66  A    WORLD    COURT    IN    THE    LIGHT    OF 

Superior.  The  solution  enacted  by  Congress  was  a 
compromise  that  satisfied  in  the  end  both  parties  and 
avoided  bloodshed.  The  power  arrayed  against 
Michigan  was  so  incomparably  greater  than  that 
which  she  herself  possessed  that  there  was  no 
alternative  left  to  her  but  to  bow  before  the  Act  of 
Congress  which  at  the  same  time  that  it  deprived 
Michigan  of  the  land  she  desired  to  the  southward, 
gave  her  ample  territorial  compensation  in  another 
direction  and  also  admitted  her  to  statehood  in 
the  Union.  It  was  a  clear  case  of  a  settlement  by 
the  application  of  superior  force  without  any 
thought  of  appealing  to  a  judicial  Tribunal. 

Only  a  few  years  before  the  outbreak  of  the  Civil 
War,  a  clash  occurred  between  the  United  States 
and  the  State  of  Wisconsin,  when  the  whole  country 
was  aroused  for  or  against  slavery,  over  the  enforce- 
ment of  the  Fugitive  Slave  Law.*®  A  citizen  of  Wis- 
consin, Sherman  M.  Booth,  editor  of  The  Wisconsin 
Free  Democrat,  on  March  nth,  1854,  aided  the 
escape  of  a  fugitive  slave  who  was  in  the  custody 
of  the  deputy  marshal  of  the  United  States  Dis- 
trict   Court.     Held    for    trial    by    a    commissioner 

*•  Stephen  V.  Ablcman  vs.  Sherman  M.  Booth,  and  the  United 
States  vs.  Sherman  M.  Booth,  21  Howard  i'nilcd  SlaUs  Supreme  Court 
Reports,  1858,  page  506. 


THE    UNITED    STATES    SUPREME    COURT.  67 

duly  appointed  by  the  United  States  District 
Court  for  Wisconsin,  Booth  sought  the  aid  of 
the  State  Courts  of  Wisconsin,  which  under- 
took to  annul  and  set  aside  the  action  of  the 
United  States  District  Court  on  the  ground  that 
the  Fugitive  Slave  Law  was  unconstitutional  and 
void.  Eventually  the  local  Federal  Court  con- 
demned Booth.  That  judgment  excited  great 
indignation  in  Wisconsin,  and  eventually  the  State 
Supreme  Court  of  Wisconsin  for  the  second  time 
released  Booth  upon  a  writ  of  habeas  corpus.  In 
March,  1857,  the  Supreme  Court  of  the  United 
States  took  jurisdiction  in  the  case;  and  in  1858 
at  the  December  term  of  the  Court,  reversed  the 
decision  of  the  Supreme  Court  of  the  State  of  Wis- 
consin. The  Wisconsin  Legislature  passed  a  per- 
sonal liberty  law,  and  in  1859  they  adopted  a  strong 
protest  against  the  action  of  the  Federal  Courts. 
The  people  of  Wisconsin  then  elected  Booth's  attor- 
ney upon  a  State  rights  and  anti-slavery  platform  to 
a  place  upon  the  Supreme  Court  of  Wisconsin. 
Booth  was  arrested  again  in  i860  by  a  United 
States  marshal,  then  rescued  and  subsequently 
again  arrested.  Eventually  the  threatening  conflict 
over  the  slavery  question  growing  out  of  the  per- 
sistent refusal  of  the  State  of  Wisconsin  to  bow  to 


68  A    WORLD   COURT    IN   THE    LIGHT    OP 

the  decision  of  the  Supreme  Court  of  the  United 
States  was  brought  to  an  end  by  President  Buchanan, 
towards  the  end  of  his  administration,  pardoning 
Booth.  That  action  of  the  President  of  the  United 
States  while  it  closed  the  incident,  did  not  alter  the 
fact  that  the  State  of  Wisconsin  just  on  the  eve  of 
the  Civil  War  had  successfully  resisted  the  actions 
of  the  United  States  Courts,  thereby  virtually  flouting 
the  decision  of  the  Federal  Supreme  Tribunal. 


PART  V. 

Before  the  Wisconsin  case  had  started  to  add 
turmoil  to  the  already  troubled  waters  through 
which  the  American  ship  of  state  was  sailing,  a 
case  at  law  had  already  been  begun  in  one  of  the 
State  Courts  of  Missouri  that,  by  the  final  decision 
of  the  United  States  Supreme  Court  with  which 
that  case  was  supposed  to  be  ended,  was  to  insure 
the  outbreak  of  the  Civil  War  within  the  country. 

It  was  in  December,  1855,  that  the  case  of  Drcd 
Scott  was  brought  to  the  bar  of  the  Supreme  Court 
of  the  United  States  of  America.  It  was  the  most 
important  case  yet  brought  to  that  great  Court 
for  settlement.   That  case  in  its  bearings  and  ramifi- 


THE   UNITED   STATES   SUPREME   COURT.  69 

cations  went  to  the  very  heart  of  what  had  been  for 
two  generations  the  dominating  poUtical  question 
of  the  North  American  Union — the  slavery  question. 
When  the  Constitution  was  framed  the  differ- 
ences of  interest  of  the  thirteen  original  States 
resulted  in  several  compromises.  Thus  while  the 
representation  in  the  lower  house  of  Congress  was 
to  be  based  upon  the  number  of  the  poptdation  of 
each  State,  the  representation  in  the  upper  house 
was  to  be  two  Senators  from  each  State,  ambassadors 
as  they  have  been  termed,  representing  sovereign 
commonwealths.  Another  compromise  was  made 
concerning  the  possession  of  the  unsettled  lands 
lying  to  the  west  of  Pennsylvania  and  north  of 
the  Ohio  River,  which  only  some  of  the  thirteen 
States  possessed.  It  was  agreed  that  the  new 
Federal  Government  should  hold  the  northwestern 
lands  for  the  common  good  of  all,  so  that  the  moneys 
obtained  from  the  sale  of  those  lands  could  be  used 
to  lighten  the  burdens  incurred  in  waging  the  war 
for  independence  as  well  by  the  States  which  did 
not  possess  lands  to  the  westward  as  those  that  did. 
A  third  subject  that  could  only  be  arranged  by 
compromise  was  the  question  of  slavery.  By  1787 
it  was  clear  that,  owing  to  climatic  conditions, 
economically  the  interests  of  the  Northern  and  the 


/ 


70  A    WORLD    COl'RT    IN    THE    LIGHT    OF 

Southern  States  in  regard  to  slavery  were  not  the 
same.  And  so  provision  was  made  that  slavery 
should  not  be  disturbed  where  it  then  existed. 
Further  it  was  arranged  that  the  Northwest  Terri- 
tory, that  is  the  territory  west  of  Pennsylvania 
and  north  of  the  Ohio  River,  should  be  free;  while 
the  land  south  of  the  Ohio  River,  reaching  to  the 
Mississippi  River,  should  be  slave.®"  In  that  way 
the  balance  was  kept  evenly  between  the  free  and 
the  slave  States  in  the  movement  westward  of  the 
population  of  the  original  thirteen  States. 

In  1803,  however,  the  United  States  purchased 
for  fifteen  millions  of  dollars  from  Napoleon,  First 
Consul  of  France,  the  great  territory  of  Louisiana. 
There  existed  no  definite  provision  at  the  time  the 
purchase  was  made  as  to  whether  the  new  territory 
should  be  wholly  free  or  wholly  slave,  or  if  divided 
between  freedom  and  slavery,  how  that  division 
should  be  accomplished.  After  much  bitterness  had 
been  engendered  between  the  free  and  the  slave 
sections  of  the  country,  through  seventeen  years  of 
political  strife,  the  matter  was  solved,  as  it  was 
supposed  at  the  time,  by  an  agreement  of  concession 

**•  That  was  before  the  time  of  the  Louisiana  purchase,  when  the 
western  frontier  of  the  United  States  was,  except  at  the  extreme  north 
and  the  extreme  south,  the  Mississippi  River. 


THE    UNITED    STATES    SUPREME    COURT.  71 

on  both  sides.  This  agreement,  which  was  made  on 
March  6th,  1820,  has  ever  since  been  known  as 
the  Missouri  Compromise.  It  provided  that  in  the 
newly  acquired  territories  west  of  the  Mississippi 
River,  all  the  territory  north  of  an  east  and  west  line 
run  at  thirty-six  degrees  thirty  minutes  north  latitude, 
should  be  free  territory  and  all  the  territory  south  of 
that  line  slave  territory,  except  that  north  of  that  line, 
the  territory  of  the  present  State  of  Missouri  should 
be  considered  as  slave  territory,  and  that  Missouri 
should  be  admitted  as  a  slave  State.  For  a  time  that 
compromise  served  to  put  off  what  was  christened 
later  by  Seward  as  the  "irrepressible"  struggle  be- 
tween freedom  and  slavery  within  the  American  Union. 
With  the  passage  of  time,  however,  as  a  result  of 
the  efforts  of  the  slave  power  to  gain  new  lands  to 
offset  the  future  increase  of  the  number  and  power 
of  the  free  States  towards  the  northwest,  north 
of  thirty-six  degrees  thirty  minutes,  Texas  was 
annexed  by  the  United  States  in  1845,  and  after  war 
with  Mexico,  California  and  New  Mexico  were 
taken  in  1848.  And  then  once  again,  two  years 
later,  just  as  thirty  years  before  in  1820  by  the 
Missouri  Compromise,  the  threatening  rivalry  be- 
tween the  free  and  the  slave  States  was  adjusted 
by  the  Compromise  of  1850.     By  the  latter  agree- 


72  A    WORLD    COURT    IN    THE    LIGHT    OP 

mcnt,  largely  the  work  of  Henry  Clay,  the  boundaries 
of  Texas  were  enlarged  westward  at  the  expense  of 
New  Mexico;  California,  whose  people  wished  to 
exclude  slavery  from  their  land,  was  admitted  as 
a  free  State;  while  in  the  territory  of  New  Mexico, 
out  of  which  Arizona  and  other  territories  were 
subsequently  carved,  the  question  whether  slavery 
should  be  established  there  or  not  was  to  be  left  to 
the  subsequent  decision  of  its  inhabitants.®'  Though 
the  latitude  of  New  Mexico  placed  her  within  the 
area  of  slavery,  her  altitude  rendered  the  successful 
cultivation  of  cotton  impossible.  And  it  soon 
became  known  slavery  could  not  be  introduced  into 
New  Mexico,  as  slave  labor  could  not  be  profitably 
employed  there.  Then  when  the  slave  States 
recognized  that  the  new  States  that  would  be 
added  to  the  Union  in  the  territories  to  the  north 
and  west  of  the  State  of  Missouri  and  west  of  the 
State  of  Texas  would  come  in  in  the  natural  course 
of  events  as  free  States,  the  slave  power  next  sought 
to  extend  slavery  into  the  Louisiana  Purchase,  above 
the  line  of  thirty-six  degrees  thirty  minutes.  And  so 
as  settlers  from  the  free  States  in  the  north  and  from 

•'  James  Ford  Rhodes:  History  of  the  United  States  from  the  Com- 
promise oj  iSjo,  New  York,  1893,  Volume  I.,  Chapters  I.  and  II. — 
John  Bach  McMastcr:  A  History  of  the  People  0/  the  United  States, 
New  York,  191J,  Volume  VIII.,  Chapter  I. 


THE   UNITED   STATES   SUPREME   COURT.  73 

the  slave  States,  especially  Missouri,  in  the  south, 
moved  into  and  settled  in  the  virgin  lands  west  and 
northwest  of  Missouri,  known  as  the  Kansas  and 
the  Nebraska  territories,  the  struggle  for  mastery 
between  the  free  and  the  slave  States  again,  about 
1854,  became  acute.  For  whichever  side  won  the 
contest  as  to  whether  those  two  territories  should 
come  in  as  free  or  slave  States,  woxild  probably 
gain  the  eventual  mastery  in  the  Union  as  a  whole.®^ 
In  the  midst  of  all  this  turmoil  over  the  question 
of  how  far  northward  slavery  should  be  extended 
within  the  Union,  occurred  the  historically  famous 
case  of  Dred  Scott. 

The  facts  of  that  case  briefly  were  these: 
Dred  Scott  was  a  negro  male  slave  belonging  in 
1834  to  Dr.  Emerson,  a  surgeon  of  the  United 
States  army.  In  that  year  Dr.  Emerson  took 
Dred  Scott  with  him  from  the  State  of  Missouri 
to  the  military  post  at  Rock  Island  in  the  State 
of  Illinois  to  which  the  doctor  was  ordered,  and 
held  Dred  Scott  there  as  a  slave  until  April  or 
May,    1836.     Then  Dr.   Emerson  was  ordered  to 

'^  James  Ford  Rhodes:  History  of  the  United  States  from  the  Com- 
promise of  1850,  New  York,  1893,  Volvime  I.,  Chapter  V.,  Volume 
II.,  Chapter  VI. — John  Bach  McMaster:  A  Brief  History  of  the 
United  States,  1907,  page  332,  et  seq.:  A  History  of  the  People  of  the 
United  States,  New  York,  1913,  Volimie  VIII.,  Chapters  XC,  XCI. 


74  A    WORLD   COURT    IN    THE    LIGHT   OF 

Fort  Snelling  on  the  west  bank  of  the  Mississippi 
River.  Fort  Snelling  was  situated  within  the 
territory  known  as  Upper  Louisiana,  a  part  of  the 
Louisiana  purchase  from  France  in  1803,  and  at  a 
point  north  of  the  latitude  of  thirty-six  degrees 
thirty  minutes  north  latitude,  and  north  of  the 
State  of  Missouri.  Dred  Scott  remained  at  Fort 
Snelling  as  a  slave  with  Dr.  Emerson  until  1838. 
Harriet  was  a  female  negro  slave  belonging  in 

1835  to  Major  Taliaferro  of  the  United  States 
Army.  That  same  year  Major  Taliaferro  was 
ordered  to  Fort  Snelling,  in  the  upper  Louisiana 
territory,  and  he  took  Harriet  there  and  kept 
her  there  as  a  slave  until  1836,  when  he  sold  her  as 
a  slave  at  Fort  Snelling  to  Dr.  Emerson,  by  whom 
she  was  kept  as  a  slave  until  1838  at  the  fort.     In 

1836  Dred  Scott  and  Harriet,  with  Dr.  Emerson's 
assent,  who  was  their  mutual  master,  intermarried. 
Two  children  were  the  result  of  their  union.  The 
elder  child,  Eliza,  was  bom  on  the  steamer  Gipsey 
on  the  Mississippi  River  at  a  point  north  of  the 
northern  line  of  the  State  of  Missouri.  The 
younger  child,  Lizzie,  was  born  subsequently  at 
the  military  post  of  JcfTerson  Barracks,  within  the 
State  of  Missouri.  In  1S3S,  Dr.  Emerson  took 
Dred  Scott  and  Harriet  his  wife,  together  with  their 


THE    UNITED    STATES    SUPREME    COURT.  75 

child  Eliza  from  Fort  Snelling  to  the  State  of 
Missouri  where  they  resided  until  the  suit  brought 
by  Dred  Scott  to  obtain  his  freedom  was  insti- 
tuted. 

The  case  was  first  tried  in  the  lower  Court  of 
the  State  of  Missouri  for  St.  Louis  County,  which 
gave  its  decision  in  favor  of  Dred  Scott  and  his 
family  having  become  free  owing  to  their  removal 
to  the  free  territory  above  the  line  of  thirty-six 
degrees  thirty  minutes  north.  The  case  then  went 
in  1852  to  the  Supreme  Court  of  the  State  of 
Missouri.  Basing  its  decision  on  the  ground  that 
Scott's  status  at  home,  regardless  of  what  it  had 
been  elsewhere,  was  settled  by  the  law  of  Missouri, 
the  Supreme  Court  of  that  State  reversed  the 
decision  of  the  lower  State  Court.  Then  the  late 
Dr.  Emerson's  widow,  in  order  to  avoid  appearing 
in  Court,  made  over  the  control  of  Scott  to  the 
executor  of  her  husband's  estate,  John  F.  A. 
Sanford,  of  New  York.**^  Thereupon  Scott  brought 
suit  against  Sanford,  his  new  master,  in  1854  in 
the  United  States  Circuit  Court  of  Missouri, 
on  the  ground  that  the  latter  was  a  citizen  of 
another   State.     Sanford   defended   the   action  on 

*'John  Bach  McMaster:     A  History  of  the  People  of  the  United 
Stales,  New  York,  1914,  Volmne  VIII.,  page  278. 


76  A    WORLD    COURT    IN    THE    LIGHT    OF 

the  ground  that  as  Scott  was  a  slave,  he  had 
not  been  and  could  not  be  a  citizen  of  the 
United  States  and  consequently  could  not  sue  in 
one  of  their  Covuts.  This  plea  the  Circuit  Court 
overruled;  but  it  decided  that  the  law  of  Missouri 
held  good  and  that  consequently,  as  the  highest 
State  Court  of  Missouri  had  decided  Scott  was  a 
slave,  and  it  was  the  practice  of  the  Federal  Courts 
to  uphold  the  decisions  of  the  highest  State  Courts 
in  such  matters,  Scott's  status  was  that  of  a  slave. 
Upon  a  writ  of  error,  Scott  then  appealed  the 
case  to  the  Supreme  Court  of  the  United  States. 
It  was  argued  at  the  December  term,  1855;  and 
because  of  the  grave  interests  to  the  country  at 
large  involved  in  the  case,  the  Court  heard  the 
case  reargued  in  the  December  term,  1856.**  Such 
was  the  importance  of  the  case,  that  in  addition  to 
the  opinion  of  the  Court  given  by  Chief  Justice 
Taney,  all  of  the  other  eight  members  of  the  Tri- 
bunal also  gave  their  separate  opinions.  The 
decision  of  the  Court  held  that  Dred  Scott  was  not 


•*  Congressional  Globe,  40th  Congress,  3rd  Session,  Appendix,  page 
211,  for  statement  of  Ashley  of  Ohio. — Samuel  Tyler,  Memoir  of 
Roger  Brooke  Taney,  Baltimore,  1872,  pages  383-384.-11^*5  of 
James  Buchanan,  edited  by  John  Bassett  Moore,  Philadelphia,  1910, 
Volume  X.,  page  106,  foot-note  to  inaugural  address. 


THE    UNITED   STATES    SUPREME    COURT.  77 

a  citizen  of  Missouri  according  to  the  sense  or 
meaning  of  the  word  "citizen"  as  used  in  the 
Constitution  of  the  United  States;  that  conse- 
quently for  that  reason  the  United  States  Circuit 
Court  had  not  jurisdiction  of  the  case,  and  so  coidd 
not  pronounce  judgment  upon  it;  that  the  deci- 
sion of  the  Circuit  Court,  therefore,  was  reversed 
and  the  suit  of  Dred  Scott  in  that  Cotirt  shovild  be 
dismissed.  That  part  of  the  opinion,  therefore,  by- 
upholding  the  decision  of  the  Supreme  Court  of 
the  State  of  Missouri,  maintained  the  status  of 
Dred  Scott  as  a  slave.  In  that  way  the  immediate 
point  at  issue  concerning  Dred  Scott  and  his  family 
as  to  whether  they  were  free  or  slave,  was  settled. 
And  in  the  opinion  of  a  large  part  of  the  people 
of  the  country,  who  formed  the  Republican  Party, 
which  had  come  into  existence  as  a  powerful  polit- 
ical association  expressly  to  resist  the  extension  of 
slavery  in  the  free  States  and  free  Territories,  the 
decision  of  the  Tribunal  should  have  ended  there. 

Originally,  in  1855,  the  Court  had  decided  to 
avoid  touching  on  the  constitutionality  of  the 
Missouri  Compromise.*'^  But  of  the  minority  of 
two  justices,   McLean  in  any  case,   and  probably 

'^George  Ticknor  Curtis:  Memoir  of  Benjamin  Robbins  Curtis 
Boston,  1879,  Volume  I.,  page  180. 


78  A    WORLD    COURT    IN    THE    LIGHT    OF 

Curtis,  determined  to  review  in  their  dissenting 
opinions  the  subject  of  negro  slavery  in  the  United 
States  from  the  Free-Soil  side  of  the  question." 
McLean,  whose  name  was  before  the  Free-Soil 
Convention  at  Buffalo  in  1848,  in  connection  with 
the  Presidential  nomination,  had  political  aspira- 
tions for  the  Republican  nomination  for  President 
to  be  held  in  Philadelphia  in  1856.  In  the  Phila- 
delphia convention  Justice  McLean  received  196 
votes  as  against  359  for  General  Fremont,  who  was 
chosen  as  the  Presidential  nominee.  Justice 
McLean's  intention  to  consider  the  slavery  ques- 
tion in  his  opinion  was  a  cause  of  uneasiness  to  the 
members  of  the  Court  who  came  from  the  slave 
States.  The  latter  were  in  the  majority,  and  after 
Buchanan's  defeat  of  Fremont  for  the  Presidency, 
had  distinctly  the  stronger  position.  Although  the 
members  of  the  Court  differed  in  opinion  as  to  the 
extent  of  their  jurisdiction  on  the  record  before 
them,  yet  in  the  end  they  all  proceeded  to  review 
the  slavery  question  so  vital  to  the  varied  interests 
of  the  northern  and  the  southern  States,  and  gave 

•*  Congressional  Globe,  40th  Congress,  3rd  Session,  Appendix,  page 
211,  for  statement  of  Ashley  of  Ohio. — Works  of  James  Biuluman, 
edited  by  John  Bassett  Moore,  Philadelphia,  1910,  Volume  X.,  page 
106,  foot  note  to  inaugural  address. 


THE    UNITED    STATES    SUPREME    COURT.  79 

opinions  touching  the  maintenance  and  spread  of 
slavery  from  various  angles.  Six  of  the  nine  mem- 
bers of  the  Court  decided  that  the  Missouri  Com- 
promise of  1820  was  not  constitutional  and  there- 
fore void  and  of  no  force,  and  consequently  Dred 
Scott  and  the  other  three  members  of  his  family 
did  not  become  free  because  of  their  having  been 
taken  to  the  territory  north  of  thirty-six  degrees 
thirty  minutes.  As  to  the  contention  that  Dred 
Scott  became  free  upon  being  taken  into  the  free 
State  of  Illinois,  the  Court,  in  the  words  of  its  dis- 
tinguished Chief  Justice,  held  that  as  "Scott  was 
a  slave  when  taken  into  the  State  of  Illinois  by  his 
owner,  and  was  there  held  as  such  and  brought 
back  in  that  character,  his  status,  as  free  or  slave, 
depended  on  the  laws  of  Missouri  and  not  of 
Illinois."  Five  of  the  Judges  declared  that  slaves 
were  property,  and  that  their  status  as  such  was 
recognized  by  the  Federal  Constitution  and  that 
they  did  not  differ  from  other  property.  Con- 
sequently, that  the  owners  of  slaves  could  take 
their  property  in  slaves  into  any  of  the  Territories 
of  the  United  States  and  keep  them  there  as  slaves. 
Four  were  of  the  opinion  that  the  power  granted 
by  the  Constitution  to  Congress  to  make  rules 
and   regulations   for   the   territory   of   the   United 


80  A    WORLD   COURT   IN   THE    LIGHT   OP 

States  did  not  apply  to  the  territory  acquired 
after  the  ratification  of  the  Constitution  of  the 
United  States.  In  the  language  of  the  Chief 
Justice:  "It  [the  Constitution]  docs  not  speak 
of  any  territory,  nor  of  Territories,  but  uses 
language  which,  according  to  its  legitimate  mean- 
ing, points  to  a  particular  thing.  The  power  is 
given  in  relation  only  to  the  territory  of  the  United 
States — that  is,  to  a  territory  of  the  United 
States."  In  addition,  three  members  of  the  Court 
decided  that  the  vahdity  of  the  Ordinance  of  1787, 
prohibiting  the  introduction  of  slavery  into  the 
territory  north  of  the  Ohio  River  and  stretching 
from  Pennsylvania  to  the  Mississippi  River  in  the 
west  and  to  the  great  lakes  in  the  north,  ended 
when  the  Confederation  ceased  to  exist  upon  the 
ratification  of  the  Constitution  and  the  creation  of 
the  new  Nation  of  the  United  States  of  America. 
From  the  opinion  of  the  Court,  two  justices  dis- 
sented. They  both  upheld  the  constitutionality  of 
the  Ordinance  of  1787  and  the  Missouri  Compro- 
mise which  prevented  the  introduction  of  slavery 
north  of  the  Ohio  River  and  of  the  line  of  thirty- 
six  degrees  thirty  minutes  north  to  the  west  of  the 
State  of  Missouri.  The  net  result  of  the  judgment 
was  not  only  to  declare  that  Dred  Scott  and  his 


THE   UNITED   STATES   SUPREME   COURT.  81 

family  were  still  slaves,  but  also  to  practically  open 
all  the  free  Territories  and  free  States  to  the  insti- 
tution of  slavery. 

By  this  decision  the  Supreme  Court  was  attempting 
to  decide  in  favor  of  the  pro-slavery  party  the  most 
fundamental  difference  of  policy  that  had  divided  the 
country  into  two  camps  since  before  the  Constitu- 
tion was  completed  in  1787  for  presentation  to  the 
several  States  for  ratification.  In  passing  from  the 
ground  of  legal  questions,  whether  Dred  Scott  was 
still  a  slave  after  his  return  to  Missouri,  to  the 
consideration  of  the  area  of  political  issues,  whether 
the  various  compromises  restricting  slavery  from 
being  carried  north  of  the  Ohio  River  and  north  of 
the  State  of  Missouri  and  beyond  that  north  of 
thirty-six  degrees  thirty  minutes  were  valid,  or 
whether  slavery  could  extend  into  the  whole  coun- 
try, the  Supreme  Court  was  attempting  to  settle 
by  a  judicial  decision,  based  ostensibly  upon  legal 
grounds,  an  economic  difference  of  fundamental 
importance  which  could  only  be  decided  by  a  trial 
of  actual  strength.  And  that  trial  was  made  during 
the  four  years  of  Civil  War  from  1861  to  1865  that 
desolated  a  large  part  of  the  country  and  destroyed 
much  of  its  wealth  and  the  lives  of  many  of  its 
inhabitants.      That    contest    of   four   years  of  war 


82  A    WORLD    COURT    IN   THE    LIGHT   OP 

reversed  the  decision  of  the  Federal  Supreme  Court 
handed  down  four  years  before  the  war  started. 

All  the  machinery  for  arriving  at  a  judicial 
settlement  of  differences  between  the  American 
States  had  been  provided  for.  The  members  of 
the  Court  were  protected  by  a  life  tenure;  they 
had  learning,  force  of  character,  and  experience. 
And  by  sitting  and  judging  together,  they  had 
enhanced  the  judicial  habit  of  their  minds.  Yet 
when  they  attempted  in  the  Dred  Scott  case  to 
decide  a  case  that  divided  the  States  of  the  Union 
into  two  fairly  even  bodies  over  a  question  which 
went  to  the  vitals  of  the  economic  life  of  each  sec- 
tion, the  Supreme  Federal  Tribunal  miserably  failed 
to  prevent  the  Nation  from  being  torn  and  racked 
for  four  years  by  Civil  War.  More  than  that,  that 
high  Court  saw  the  decision,  which  it  had  arrived 
at  by  an  overwhelming  majority  of  the  votes  of  its 
members,  reversed  and  its  findings  brushed  aside  by 
war.  In  other  words,  its  judgment  was  flouted  by 
a  majority  alike  of  the  States  and  the  people. 

Thus  in  actual  practice  the  attempt  of  the 
Supreme  Court  of  the  United  States  to  settle  in 
peace  by  a  judicial  decision,  according  to  the  pro- 
visions of  the  United  States  Constitution,  the 
fimdamental   economic  difference  of  interest  over 


THE    UNITED    STATES    SUPREME    COURT.  83 

slavery  between  the  States  north  and  those  south 
of  Mason  and  Dixon's  Line,  proved  a  complete 
failure.  The  Court  had  successfully  settled  by  its 
decisions  many  differences  between  two  of  the 
States  of  the  Union.  But  when  it  tried  in  the  same 
way  to  decide  a  disagreement  in  which  all  the 
States  took  a  deep  concern  and  over  which  they 
were  divided  into  two  large  camps,  with  the  weight 
of  numbers  leaning  towards  the  North,  but  with  the 
strategic  advantage  of  geographical  position  with 
the  South,  the  Court  could  not  compass  its  object. 
And  war  was  the  only  solution  that  remained  for 
the  slavery  problem.  As  a  result  of  the  American 
Civil  War,  slavery  was  abolished  in  the  United 
States,  the  Nation  was  consolidated  into  a  power- 
ful member  of  the  family  of  Nations,  and  the 
Federal  Supreme  Court  was  able  to  resume  the 
even  tenor  of  its  way  in  settling  successfully  by 
judicial  decisions  according  to  the  legal  evidence 
submitted  to  it  the  differences  that  have  occa- 
sionally arisen  since  between  two  of  the  member 
States  of  the  Union  as  had  been  its  wont  from  the 
settlement  of  the  great  case  of  Rhode  Island  and 
Providence  Plantations  vs.  Massachusetts  until  the 
Court  attempted  and  failed  to  decide  the  slavery 
problem  in  the  Dred  Scott  case. 


84  A    WORLD    COURT    IN    THE    LIGHT    OF 


PART  VI. 

If  the  foregoing  course  of  events  leading  up  to 
the  formation  and  development  of  the  United 
States  Supreme  Court  are  compared  with  the 
efforts  of  the  Nations  to  develop  international 
justice  as  a  substitute  for  international  war,  some 
resemblances  and  some  differences  are  found. 

In  both  the  spheres  of  the  Confederation  of  the 
thirteen  British  North  American  colonies  and  after- 
wards of  their  successor,  the  more  modem  North 
American  Union,  as  well  as  for  a  much  longer  time 
back  in  the  greater  sphere  of  the  world  as  a  whole, 
there  has  been  a  continuous,  though  until  recently 
slow,  growing  desire  to  substitute  as  far  as  possible 
justice  instead  of  armed  strife  in  settling  tho  differ- 
ences between  large  communities. 

If  the  beginning  and  development  of  judicial 
settlements  in  North  America  as  a  substitute  for 
war,  first  in  the  time  of  the  colonies  and  afterwards 
in  the  lifetime  of  the  United  States  of  America,  is 
compared  with  the  beginning  and  development  of 
international  justice  in  settling  the  differences  that 
arise  between  Nations,  many  analogous  features  and 
marks  of  resemblance  are  found  in  the  two  cases. 


THE    UNITED    STATES    SUPREME    COURT.  85 

At  the  time  the  idea  of  judicial  justice  as  a  way  of 
avoiding  war — which  had  been  in  use  among  the 
Greek  City  States  and  also  in  Europe  during  the 
Middle  Ages" — began  to  develop  in  a  halting  manner 
in  the  North  American  colonies  by  the  reference  in 
1650  of  the  differences  existing  between  the  Dutch 
colony  of  New  Netherland  and  the  two  English 
colonies  of  Connecticut  and  New  Haven  to  a  board  of 
adjudication,  the  idea  of  international  arbitration 
as  a  way  of  settling  differences  between  two  Powers 
or  Potentates  was  likewise  beginning  again  to  take 
practical  shape  in  Europe.  In  the  treaty  of  West- 
minster in  1655  between  France  and  England,  those 
two  Powers,  possibly  at  the  instigation  of  Oliver 
Cromwell,  agreed  that  some  minor  differences  that 
still  existed  between  them  should  be  referred  for 
settlement  in  the  first  instance  to  a  Board  of  Adju- 
dication, and  that  body  failing  to  settle  the  matters 
in  dispute,  that  then  those  troubles  should  be  sub- 
mitted to  the  Imperial  Free  City  of  Hamburg  for 
final  judgment. 

*^  Victor  Berard:  De  arbilrio  inter  liberas  Groscorum  civitales,  Paris, 
1894. — W.  L.  Westermarm:  Interstate  Arbitration  in  Antiquity,  The 
Classical  Journal,  Chicago,  March,  1907. — Thomas  Willing  Balch: 
L'£volution  de  VArbitrage  International,  Philadelphia,  1908. — A. 
Raeder:    U Arbitrage  International  c/iez  les  Hellenes,  Christiania,  191 2. 


86  A    WORLD   COURT    IN    THE    LIGHT    OF 

Then  the  idea  of  a  supreme  judicial  power  to  judge 
between  the  English  North  American  continental 
colonies  developed  through  the  practice  of  appealing 
the  unsettled  disputes  which  arose  between  those 
colonies  to  the  King  in  Council  for  judgment  on  the 
merits  of  each  case,  and  thereby  prepared  the  ground 
for  the  subsequent  development  of  the  Inter-State 
Tribunals  in  the  time  of  the  Confederation  of  the 
American  States  and  the  still  later  establishment  of 
the  Federal  Supreme  Court.  Likewise,  international 
justice  as  a  practical  means  of  avoiding  war,  from  the 
beginning  it  had  taken  in  Europe  in  the  treaty  of 
Westminster  of  1655,  took  a  step  in  advance,  in 
the  provisions  agreed  on  in  the  V.,  VI.,  and  VII. 
articles  of  Jay's  Treaty  of  1794  with  Great  Britain 
to  submit  various  outstanding  differences  between 
the  United  States  and  Great  Britain  to  boards 
of  commissioners.  And  later  still  again  international 
justice  pressed  forward  when  it  blossomed  out  into 
the  International  Court  of  Justice  which  sat  at 
Geneva  in  1871-72,  and  by  a  judicial  settlement 
decided  the  Alabama  Claims  without  the  spilling  of 
a  drop  of  blood. 

In  the  Wyoming  Valley,  the  Alabama  Claims  and 
the  Bering  Sea  Fur  Seal  cases,  the  Tribunal  that 
tried  each  case  was  appointed  only  to  try  the  one 


THE   UNITED   STATES   SUPREME   COURT.  87 

case,  and  in  each  of  those  instances  it  was  con- 
stituted ad  hoc.  Nevertheless,  in  all  of  those  three 
trials  the  Court  that  heard  the  case,  whether  it 
was  the  Tribunal  that  sat  at  Trenton,  or  later  the 
one  at  Geneva  or  still  later  the  third  Court  that 
sat  at  Paris,  in  each  instance  was  a  Tribunal  of 
Justice,  by  whatever  name  it  may  have  been  desig- 
nated at  the  time,  that  tried  the  single  case  pre- 
sented to  its  individual  bar,  and  according  to  the 
evidence  submitted  to  it  gave  a  judgment  based 
upon  the  law  applicable  to  the  partictdar  case  it 
had  to  consider. 

Further,  a  comparison  of  the  Inter-State  Court 
that  sat  at  Trenton  in  1782  with  the  International 
Courts  of  Arbitration  or  Justice  which  have  sat  at 
The  Hague  under  the  provisions  of  the  First  and 
the  Second  Hague  Peace  Conferences,  such  as  the 
Court  that  tried  the  Casablanca  Affair  and  the 
Tribunal  that  tried  the  North  Atlantic  Fisheries 
case,  show  another  point  of  similarity  in  the 
development  of  substituting  legal  justice  for  war 
between  sovereign  communities  as  between  the 
member  States  of  the  American  Union  in  the  one 
instance  and  between  the  Nations  of  the  world  in 
the  other.  The  Trenton  Court  and  the  more  recent 
Hague   International   Coiirts  were  all   called   into 


88  A   WORLD   COURT    IN   THE    LIGHT   OF 

being  under  a  general  provision  for  the  appoint- 
ment of  such  Tribunals,  in  the  one  case  imder  the 
ninth  article  of  the  Articles  of  Confederation  of  the 
United  States,  and  in  the  other  under  the  pro- 
visions of  the  agreements  of  the  First  and  the 
Second   Hague   Peace   Conferences. 

Consequently,  in  considering  the  possibilities  of 
developing  the  idea  of  International  Tribunals  set 
up  ad  hoc  to  try  individual  cases  arising  between 
Nations  into  one  Supreme  Court  of  the  World,  with 
a  total  of,  for  example,  fifteen  judges,  sitting  at 
The  Hague  in  judgment  upon  the  Nations  of  the 
world,  it  is  well  to  ponder  over  the  road  the 
Supreme  Court  of  the  United  States  has  had  to 
travel  to  reach  the  exalted  regard  in  which  it  has 
been  held  by  all  classes  untU  very  recently  in  the 
American  Union;  and  also  to  consider  the  recent 
unfavorable  criticisms  and  political  attacks  that 
have  been  made  upon  it  and  other  American  Courts 
by  a  substantial  section  of  the  American  people. 

When  the  thirteen  British  North  American 
Colonies  revolted  against  the  mother  land,  they 
became  allies  spontaneously  through  the  exigencies 
demanded  by  their  efforts  to  gain  and  maintain  by 
means  of  war  their  independence  as  thirteen 
sovereign   Nations.     But   before   the  close  of  the 


THE    UNITED    STATES    SUPREME    COURT.  89 

struggle  they  found  it  necessary  to  enter  into  a 
formal  written  agreement,  known  as  the  Articles 
of  Confederation,  in  order  to  bind  themselves  with 
one  another  more  firmly  than  they  were  by  the 
mere  fact  that  they  were  working  together  for  the 
common  object  of  forcing  Great  Britain  to  acknowl- 
edge their  right  to  govern  themselves  in  peace  and 
independently  of  her  interference  or  control.  And 
to  preclude  as  far  as  possible  the  possibility  of  the 
newly  bom  thirteen  members  of  the  family  of 
Nations  from  falling  on  one  another's  throats,  over 
disputes  concerning  land,  boundaries  and  other 
causes,  they  provided  a  way  for  establishing  a 
judicial  machinery  for  trying  such  cases  of  differ- 
ence between  the  member  States  of  the  Confedera- 
tion. They  agreed  that  any  member  of  the  Con- 
federation which  had  a  cause  of  dispute  with  one 
of  her  sister  Commonwealths,  could  ask  that  the 
question  of  difference  should  be  submitted  to  a 
judicial  settlement.  And  before  the  war  closed, 
the  manner  for  establishing  an  Inter-State  Tri- 
bunal as  provided  for  by  the  ninth  article  of  the 
Articles  of  Confederation,  was  invoked  by  the 
richest  and  probably  the  most  powerful  of  the 
States  at  that  time,  in  a  case  against  another, 
though  less  powerful,  member  of  the  Confederation. 


90  A    WORLD   COURT    IN   THE    LIGHT   OF 

Had  the  thirteen  original  States  come  into  being 
without  any  fear  of  outside  attack,  it  is  very  prob- 
able that  they  would  not  have  agreed  on  any 
scheme  such  as  was  evolved  in  the  ninth  article 
of  the  Articles  of  Confederation.  But  the  fear 
of  the  power  of  Great  Britain,  against  which  the 
thirteen  colonies  or  States  were  battling  for  their 
independence,  compelled  them  to  adjust  and  com- 
pose the  causes  of  difference  between  themselves 
in  peace  and  concord;  and  so  they  were  forced 
to  seek  a  way  by  which  their  dissensions  could 
be  settled  by  a  series  of  Tribunals  that  would 
decide  according  to  the  principles  of  justice.  The 
necessity  for  presenting  a  united  and  harmonious 
front  to  Great  Britain  during  the  struggle  for 
political  independence,  and  afterwards  to  the  world 
at  large,  was  the  sanction  behind  the  Trenton 
Inter-State  Tribunal  which  judged  between  Penn- 
sylvania and  Connecticut  in  the  Wyoming  Valley 
controversy. 

When,  by  the  Treaty  of  Paris  of  1783,  the 
colonies  had  secured  peace  with  Great  Britain, 
and  so  were  at  peace  with  all  the  outside  world, 
they  soon  found  out  that  the  loose  Confedera- 
tion in  which  they  were  bound  did  not  hold 
them    very    tightly    and    that    there    was    danger 


THE   UNITED   STATES   SUPREME   COURT.  91 

that  it  might  break  into  pieces.  As  even  united 
they  were  none  too  strong  in  comparison  with 
the  Eiiropean  Powers  of  that  day,  the  thirteen 
Nations  composing  the  United  States  of  America 
were  compelled  through  their  fear  of  the  outside 
world  to  suppress  their  jealousies  of  one  another, 
which  otherwise  doubtless,  sooner  or  later,  would 
have  broken  up  the  Confederation;  and  to  devise  a 
scheme  to  form  a  more  complete  and  perfect  union. 
Accordingly,  for  that  purpose,  they  formed  and 
agreed  to  the  compact  known  as  the  Constitution. 
To  accomplish  that  object,  the  various  States  had  to 
mutually  give  and  take  of  the  various  provisions 
which  individually  they  would  have  wished  to  see 
incorporated  into  the  Constitution.  For  example, 
to  meet  the  fear  of  the  States  of  small  area,  who 
feared  that  in  the  new  form  of  government  they 
wotdd  be  over-ridden  by  the  large  States  if  the 
members  of  Congress  should  be  elected  according  to 
the  number  of  the  population  throughout,  it  was 
agreed  by  the  large  States  that  in  the  Senate  or 
upper  house,  the  basis  of  representation  of  the 
States  should  be  equal,  that  is,  that  each  State  should 
be  entitled  to  elect  two  Senators.  In  the  lower 
chamber,  or  House  of  Representatives,  however,  in 
order  to  meet  the  wishes  of  the  large  States  for 


92  A    WORLD    COURT    IN    THE    LIGHT    OF 

representation  commensurate  with  the  number  of 
their  people,  the  Representatives  were  to  be  elected 
on  the  basis  of  population.  And  other  compromises 
to  meet  the  demands  and  needs  of  various  more  or 
less  clashing  interests  were  compassed  in  the  creation 
of  the  Constitution.  In  order  to  interpret  the 
Constitution  thus  elaborated,  and  to  decide  how  and 
in  what  manner,  as  a  fundamental  law,  it  held  in 
check  the  Legislative  and  the  Executive  depart- 
ments of  the  new  Federal  Government  which  it  was 
proposed  to  create  through  the  means  of  this  Con- 
stitution side  by  side  with  the  thirteen  State  Govern- 
ments then  existing,  it  was  decided  to  establish  a 
high  and  supreme  Federal  Court.  In  order  to 
insure  that  the  new  Court,  so  far  as  human  attributes 
made  it  possible,  should  be  free  of  political  bias  and 
fear,  and  so  the  more  likely  in  all  its  decisions, 
whether  over  matters  of  small  import  or  those  of  the 
gravest  consequence,  to  reach  its  conclusions  upon 
strictly  legal  grounds  and  the  principles  of  justice 
and  equity  instead  of  compromise,  it  was  arranged 
that  the  Supreme  Court  of  the  United  States,  as  the 
resulting  Supreme  Federal  Tribunal  has  been  known 
to  all  the  world,  should  be  co-equal  with  and  abso- 
lutely independent  of  the  Legislative  and  the 
Executive  branches  of  the  Government.     There  was 


THE    UNITED    STATES    SUPREME    COURT.  93 

much  opposition  at  the  time  to  the  creation  of  such 
a  Court.  The  fear  was  plain  that  it  would  impugn 
on  the  sovereignty  of  the  individual  States  or  Nations 
of  the  Confederation. 

Nevertheless,  the  dread  which  the  thirteen  young 
States  had  of  the  interference  among  them  of  out- 
side Powers  was  greater  than  the  jealousy  that  they 
entertained  of  one  another.  The  fear  that  they 
entertained  of  other  outside  Nations  was  strong 
and  real  enough  to  induce  them  to  enter  the  pro- 
posed new  Union  by  accepting  the  Constitution.  In 
some  States,  such  as  Virginia  and  New  York  especi- 
ally, the  opposition  to  the  Constitution  was  keen. 
However,  in  the  course  of  time  all  of  the  thirteen 
States  accepted  it  and  came  into  the  Union.  And 
where  before  there  had  been  thirteen  Nations  joined 
in  a  defensive  league,  one  new  Nation  was  created. 
It  was  a  new  Nation  which  provided  for  and  reqtiired 
of  its  citizens  a  double  allegiance  and  loyalty.  For 
the  new  Federal  Government  was  placed  around 
and  alongside  of,  not  over,  the  original  State  Govern- 
ments, with  restrictions  upon  the  sovereign  powers 
of  the  Federal  Government,  while  other  powers  were 
reserved  to  the  individual  State  Goverrmients. 
This  was  a  new  and  unique  device  in  the  develop- 
ment of  human  polity.     The  power  to  deal  with 


94  A    WORLD    COURT    IN    THE    LIGHT    OF 

foreign  affairs,  which  is  the  supreme  test  of  whether 
a  political  organism  is  international  or  not,  was 
vested,  however,  entirely  in  the  Federal  Govern- 
ment. 

Great  pains  were  taken  in  moulding  the  Consti- 
tution to  provide  for  the  safeguarding  of  the 
sovereignty  of  the  individual  thirteen  States,  and 
subsequently,  in  the  first  ten  amendments  to  the 
Constitution  additional  guarantees  for  the  preser- 
vation of  those  local  sovereignties  were  added.  The 
necessity  felt  at  first  to  strengthen  the  Federal  power 
of  the  American  Union  by  degrees  led  the  Supreme 
Court  of  the  United  States  under  the  Chief  Justice- 
ship of  John  Marshall  (i  801-1835)  to  build  up  the 
power  of  the  central  or  Federal  government.  And 
more  especially  under  the  stress  of  outside  pressure 
caused  by  the  contact  of  the  United  States  of 
America  with  the  other  Nations  of  the  world,  though 
other  contributory  causes  worked  to  the  same  end, 
the  sovereignty  reserved  with  so  much  care  in  the 
Constitution  to  the  individual  States  has  grown 
slowly  but  gradually  and  surely  less.  The  dimi- 
nution of  this  sovereignty  of  the  individual  States 
has  not  progressed  at  all  times.  At  times,  as  for 
example,  when  Roger  Brooke  Taney  (1836- 1864) 
presided  as  Chief  Justice  over  the  Supreme  Court 


THE   UNITED   STATES   SUPREME    COURT.  95 

of  the  country,  the  slow  but  certain  march  of  events 
to  subordinate  more  and  more  the  individual  States 
to  the  central  Federal  State  has  been  checked — 
always  excepting  the  absolute  control  over  foreign 
relations  with  which  the  Federal  Government  was 
clothed  from  the  first — by  the  strict  interpretation 
put  upon  the  Constitution  by  the  highest  Federal 
Court.  But  sooner  or  later,  the  absorption  by  the 
Federal  Government  of  the  functions  of  govern- 
ment which  were  originally  exercised  by  the  indi- 
vidual States  has  been  resumed.  Until  finally, 
with  the  passage  of  the  sixteenth  amendment  to  the 
Constitution,  which  gives  to  the  Federal  Govern- 
ment the  right  to  impose  an  income  tax  on  every 
individual  in  the  United  States,  there  was  conferred 
upon  the  Federal  Government  a  power  of  immediate 
contact  with  every  individual  in  the  country  which 
eventually  will  enable  it  to  destroy  all  but  the 
shell  of  the  power  of  government  and  sovereignty 
possessed  originally  by  the  individual  States.  As  a 
result,  Pennsylvania,  New  York  and  the  other 
individual  member  States  of  the  Union,  will  then 
have  no  more  sovereign  power  than  Calvados  and 
the  other  departments  of  France,  or  Somersetshire 
and  the  other  shires  of  England,  or  Hesse-Nassau 
and  the  other  provinces  of  Prussia  possess  to-day. 


96  A    WORLD   COURT   IN  THE    LIGHT   OF 

The  gradual  change  that  has  tended  slowly  but  surely 
to  weld  the  United  States  from  a  Union  of  States 
into  one  large  single  State  has  been  caused  in  great 
measure  by  the  influence  exerted  in  countless  ways, 
both  directly  and  indirectly,  by  the  other  Nations 
of  the  world  in  their  contact  for  more  than  a  century 
with  the  North  American  Republic.  As  the  latter 
Power  has  come  into  closer,  more  direct,  and  more 
vital  intercourse  and  interdependence  with  the  other 
members  of  the  family  of  Nations  in  all  parts  of  the 
world,  the  member  States  of  the  North  American 
Union  have  realized,  both  consciously  and  uncon- 
sciously, that  they  must  draw  closer  together  if 
they  wished  to  maintain  their  position  "in  the  Sun." 


PART   VII. 

Turning  now  from  the  consideration  of  the 
manner  in  which  the  Supreme  Court  of  the  United 
States  has  succeeded  as  the  Tribunal  of  last  resort 
of  the  American  Union  in  keeping,  in  large  measure, 
the  peace  between  the  individual  States  of  that 
Union,  it  will  be  valuable  to  consider,  by  the  illu- 
mination of  the  light  of  its  history,  how  far  the 
setting  up  of  a  Supreme  Court  of  the  World  is 


THE    UNITED    STATES    SUPREME    COURT.  97 

likely  to  succeed  as  an  infallible  way  of  eliminating 
war  from  the  affairs  of  the  family  of  Nations. 

An  examination  of  the  relations  of  the  members 
of  the  family  of  Nations  to  one  another  shows  that 
concerning  questions  which  do  not  involve  the  vital 
interests  of  a  Nation,  that  is  legal  questions,  the 
past  resort  to  International  Tribunals  for  settling 
differences  between  the  Powers  gives  ample  assur- 
ance that  strong  Nations  as  well  as  weak  ones  would 
appeal  their  differences  and  submit  to  the  Supreme 
Court  of  the  World,  as  they  have  submitted  to  the 
decisions  of  International  Tribunals  constituted  ad 
hoc.^^  It  is  better,  in  such  legal  cases,  for  a  Nation 
to  go  before  a  Court  and  lose  its  cause,  and  so 
have  to  give  way  in  an  honorable  manner  to  the 
demands  of  its  opponent  than  to  take  the  chances 
of  war,  or  allow  the  difference  to  smoulder  and 
lead  to  possible  embarrassment  at  a  future  time. 

It  was  largely,  for  example,  because  Great  Britain 
could  not  afford  to  allow  the  Alabama  Claims  to 
develop  hostility  to  itself  in  the  United  States  if 

**  John  Westlake:  International  Law,  2nd  edition,  1910,  Volume  I., 
pages  300  et  seq. — Lassa  Oppenheim:  International  Law,  2nd  edition, 
1 91 2,  Volume  II.,  pages  3-5. — Amos  S.  Hershey:  Essentials  of  Inter- 
national Public  Law,  191 2,  page  321. — Thomas  Willing  Balch:  Dif- 
ferends  juridiques  et  politiques  dans  les  rapports  des  nations,  Revue 
Generale  de  Droit  International  Public,  Paris,  1914,  page  137. 


98  A    WORLD   COURT    IN   THE    LIGHT   OF 

those  claims  were  not  satisfied,  that  she  agreed  to 
submit  them  to  the  Geneva  Tribunal.  In  that  way 
the  honor  of  both  Nations  was  safeguarded,  satis- 
faction was  given  to  the  United  States  for  the 
grievances  under  which  they  were  chafing,  and 
opportunity  was  offered  to  promote  more  cordial 
relations  between  the  two  Powers.  The  underlying 
reason  why  British  statesmen  were  anxious  to 
remove  the  cause  of  discontent  in  the  United  States 
towards  Great  Britain  by  submitting  the  Alabama 
Claims  for  a  judicial  decision  to  the  Geneva  Tri- 
bunal, was  the  fact  that  there  were  other  Powers, 
besides  those  two,  in  the  World,  and  Great  Britain 
wisely  shaped  her  policy  in  that  instance  from  a 
world  wide  point  of  view. 

Suppose,  however,  that  a  Supreme  Court  of  the 
World  with  a  permanent  or  definite  personnel  is  set 
up  at  The  Hague,  will  there  be  a  sufficient  force  of 
compulsion  behind  it  to  compel  at  all  times  all  the 
Nations  to  submit  to  that  august  Tribunal  all  the 
disputes  arising  between  two  or  more  Nations  that 
those  Nations  are  not  able  to  settle  themselves  by 
diplomatic  means? 

The  advocates  of  a  Supreme  Court  of  the  World 
— composed  of  a  small  number  of  jurists,  with 
irrevocable  life  appointments,  some  of  whom,  per- 


THE    UNITED    STATES    SUPREME    COURT.  99 

haps  all,  would  be  sitting  constantly  at  The  Hague 
— have  great  hopes  that  from  the  breasts  of  such 
judges  all  national  prejudices  would  be  eliminated 
in  the  judgments  they  would  hand  down  in  such  a 
Tribunal.  And  the  advocates  of  such  a  Court 
further  argue  that  because  of  the  permanency  of 
the  judges  in  contradistinction  with  the  temporary 
status  of  the  members  of  an  International  Tribunal 
named  ad  hoc  to  try  a  single  case,  or  series  of  similar 
cases,  such  a  Court  would  hand  down  only  judicial 
decisions,  and  that  as  a  further  result  the  Nations 
would  have  far  greater  faith  in  the  rendering  of 
judicial  judgments  instead  of  diplomatic  compro- 
mises by  such  a  Supreme  Court  of  the  World  than 
they  could  have  in  International  Courts  set  up 
ad  hoc. 

In  the  instructions  given  to  the  American  dele- 
gation to  the  Second  Hague  Peace  Conference  in 
1907,  they  were  urged  to  work  for  the  establish- 
ment of  a  Supreme  Court  of  the  Nations.  These 
instructions  read  in  part: 

"If  there  could  be  a  tribunal  which  would  pass 
upon  questions  between  Nations  with  the  same 
impartial  and  impersonal  judgment  that  the  Su- 
preme Court  of  the  United  States  gives  to  ques- 
tions arising  between  citizens  of  the  different  States, 


100  A    WORLD   COURT    IN    THE    LIGHT   OP 

or  between  foreign  citizens  and  the  citizens  of  the 
United  States,  there  can  be  no  doubt  that  Nations 
would  be  much  more  ready  to  submit  their  contro- 
versies to  its  decision  than  they  are  now  to  take 
the  chances  of  arbitration. 

"It  should  be  your  effort  to  bring  about  in  the 
Second  Conference  a  development  of  The  Hague 
Tribunal  into  a  permanent  tribunal  composed  of 
judges  who  are  judicial  officers  and  nothing  else, 
who  are  paid  adequate  salaries,  who  have  no  other 
occupation,  and  who  will  devote  their  entire  time 
to  the  trial  and  decision  of  international  causes  by 
judicial  methods  and  under  a  sense  of  judicial 
responsibility.  These  judges  should  be  selected 
from  the  different  countries,  that  the  different  sys- 
tems of  law  and  procedure,  and  the  principal  lan- 
guages shall  be  fairly  represented.  The  court  should 
be  made  of  such  dignity,  consideration  and  rank 
that  the  best  and  ablest  jurists  would  accept 
appointment  to  it,  and  that  the  whole  world  will 
have  absolute  confidence  in  its  judgments." 

In  referring  to  the  record  of  the  Supreme  Court 
of  the  United  States  as  an  example  by  analogy  of 
how  a  Supreme  Court  of  the  World  would  work  in 
practice,  there  is  in  those  instructions  a  funda- 
mental   omission.      It    is    perfectly    true,    as    the 


THE    UNITED    STATES    SUPREME    COURT.  101 

instructions  say,  that  the  Supreme  Cotirt  of  the 
United  States  judges  with  absolute  fairness  between 
individual  citizens  of  different  States  of  the  Ameri- 
can Union,  or  between  citizens  of  foreign  countries 
and  citizens  of  the  United  States.  But  in  those 
same  instructions  no  mention  is  made  of  the  unique 
and  far  more  important  record  of  the  United 
States  Supreme  Court  in  judging  between  the 
individual  States  of  the  Union,  and  especially  of 
its  judgment  in  the  Dred  Scott  case,  a  judgment  in 
which  all  the  member  States  of  the  American  Union 
were  vitally  interested. 

It  is  precisely  that  part  of  the  record  of  the  Federal 
Supreme  Court  which  the  instructions  to  the  Amer- 
ican delegation  of  1907  fail  to  mention  that  are  the 
essential  and  valuable  part  of  the  useful  and  honor- 
able career  of  that  great  Court  in  estimating  how  a 
Supreme  Court  of  the  Nations  will  work  in  actual 
practice.  The  problem  which  a  Supreme  Coiut  of 
the  World  will  have  to  face  is  altogether  different 
from  that  part  of  the  record  of  the  United  States 
Supreme  Court  in  which  it  has  given  "impartial 
and  impersonal  judgment"  merely  between  indi- 
vidual "citizens  of  the  different  States,  or  between 
foreign  citizens  and  the  citizens  of  the  United 
States."     The  Municipal  Courts  of  other  countries 


102  A    WORLD   COURT   IN   THE   LIGHT   OP 

have  done  as  well  as  that.  They  have  not  only 
judged  impartially  between  their  own  citizens,  but 
also  between  their  own  citizens  and  foreigners. 
Thus,  for  instance,  since  the  Great  War  began,  the 
highest  Court  of  Germany  according  to  Professor 
Philip  Marshall  Brown  of  Princeton  University, 
in  judging  a  patent  case  involving  the  rights  of  a 
Frenchman  actually  fighting  for  France,  protected 
the  rights  of  the  Frenchman.®"  But  that  case  did 
not  involve  the  relative  power  of  France  and  Ger- 
many i^is-h-vis  of  one  another. 

Is  there  any  strong  likelihood  that  a  Supreme 
Court  of  the  World  in  judging  between  the  Nations 
would  give  only  judicial  judgments  based  upon 
justice  and  avoid  all  diplomatic  or  political  com- 
promises so  that  Nations  would  much  more  readily 
take  their  differences  to  such  a  Tribunal  than  to  the 
International  Courts  now  established  ad  hoc  accord- 
ing to  The  Hague  agreement? 

To  begin  with,  much  of  the  unfavorable  criticism 
which  has  been  aimed  at  some  of  the  judgments 
handed  down  by  International  Courts  named  ad  hoc 
has  not  been   altogether  disinterested.     Certainly 

"Philip  Marshal!  Brown:  International  Administration;  Pro- 
ceedings oj  the  American  Philosophical  Society,  Philadelphia,  191 6, 
Volume  LV.,  page  316. 


THE    UNITED   STATES   SUPREME   COURT.  103 

that  may  be  said  of  the  criticisms  of  the  counsel  of  a 
defeated  Nation  or  of  a  Nation  which  has  not  gained 
all  that  it  claimed.  The  adverse  criticism  of  the 
judgment  of  a  Court  by  an  advocate  of  one  side  or 
the  other  in  the  case  should  be  taken,  both  as  regards 
Municipal  and  International  Courts,  cum  grano  salts. 
And,  indeed,  many  judgments  handed  down  by 
Municipal  Tribunals  could  be  attacked  as  com- 
promises with  qtiite  as  much  accuracy  and  plausi- 
bility as  some  of  the  judgments  given  by  Interna- 
tional Courts  set  up  ad  hoc,  which  some  writers  have 
attacked  as  being  compromises. 

The  decision  of  the  International  Court  that  sat 
on  the  Venezuela  boundary  case,  for  example,  has 
been  criticised  by  some  jurisconsults  in  having  leaned 
too  much  towards  Great  Britain's  contention  in  its 
decision.  In  the  opinion  of  other  learned  publicists 
and  jurisconsults,  however,  that  decision  was  emi- 
nently a  judicial  judgment. 

The  judgment  in  the  North  Atlantic  Coast  Fish- 
eries case  in  19 lo,  however,  would  seem  to  have 
fallen  below  the  high  plane  set  by  the  Geneva  Tri- 
bunal in  1872  and  the  Bering  Sea  Court  in  1893  of 
handing  down  strictly  judicial  judgments.  For  the 
decision  handed  down  by  The  Hague  Court  named 
ad  hoc  in  19 10  to  try  the  North  American  Fisheries 


104  A    WORLD   COURT   IN   THE    LIGHT  OP 

case  bears  on  its  face  many  marks  of  a  compromise. 
But  inasmuch  as  the  United  States  of  America  and 
the  British  Empire  each  had  one  of  their  nationals 
sitting  in  that  Court,  and,  when  in  addition  the 
fact  that  those  two  members  of  the  Court,  one  an 
American,  the  other  a  Canadian,  agreed  entirely  in 
the  judgment  handed  down  by  the  Tribunal,  is 
taken  into  account,  together  with  the  provisions  of 
the  preliminary  agreement  (conipromis)  which  the 
two  governments  negotiated  to  refer  the  case  to  one 
of  The  Hague  International  Courts  for  settlement, 
it  would  seem  that  the  blame  for  the  element  of 
compromise  which  crept  into  the  decision  should 
rather  be  visited  upon  the  two  governments  who 
arranged  to  refer  the  case  to  one  of  The  Hague 
Courts  than  upon  the  members  of  that  Court.  For 
the  treaty  rather  gives  the  impression  that  the  two 
governments  so  arranged  things  beforehand  that  the 
Court  could  not  well  avoid  the  element  of  compromise 
entering  its  decision.  And  this  seems  all  the  more 
likely  when  it  is  remembered  that  the  American 
member  of  the  Court  was  a  United  States  Federal 
Judge,  who  was  accordingly  well  accustomed  in 
co-operation  with  his  brother  judges  in  the  United 
States  Court  in  which  he  sat,  to  form  and  hand  down 
judicial  decisions,  and  that  the  representative  of 


THE    UNITED    STATES    SUPREME    COURT.  105 

the  British  Empire  on  the  Court  was  none  other  than 
the  Chief  Justice  of  Canada,  also  well  versed  in 
judicial  procedure.  One  of  the  neutral  members  of 
that  Hague  Court  would  seem  in  the  separate 
opinion  which  he  filed,  to  have  been  largely  influenced 
in  his  judgment  as  to  the  extent  of  the  territorial 
character  of  the  waters  of  large  bays  by  the  fact  that 
at  the  mouth  of  the  greatest  river  passing  through 
his  own  country  and  contiguous  with  her  coast, 
there  is  a  bay  of  immense  extent  with  an  opening 
towards  the  ocean  of  more  than  one  hundred  miles 
in  width.  If,  however,  he  had  sat  to  hear  that  same 
fisheries  case,  not  merely  in  one  of  The  Hague 
International  Tribunals  appointed  ad  hoc  to  try  that 
one  single  case,  but  as  a  member  of  a  continuous  and 
ever  existing  Tribunal,  such  as  the  Supreme  Court  of 
the  United  States  or  the  Cour  de  Cassation  of 
France,  with  a  life  appointment  and  with  that  inti- 
mate knowledge  of  his  fellow  judges  which  comes 
only  from  the  continuous  contact  that  results  from 
repeated  and  continual  sitting  with  them  on  the 
same  bench  to  try  numerous  and  varied  causes  of 
contention,  would  he  have  been  any  the  more  free 
from  the  national  bias  that  showed  itself  in  his 
individual  judgment?  The  individual  judgments  of 
the  Chief  Justice  and  the  Justices  of  the  Supreme 


106  A    WORLD   COURT   IN  THE   LIGHT   OF 

Court  of  the  United  States  in  the  case  of  Dred 
Scott  would  seem  to  give  a  negative  answer  to  the 
foregoing  quer>'. 

In  the  Dred  Scott  case,  when  the  Federal  Supreme 
Court  was  wrestling  with  the  political  question 
involved  in  the  contest  between  the  free  and  the 
slave  States,  as  to  where  and  how  far  the  institu- 
tion of  slavery  should  be  allowed  to  spread,  the 
individual  members  of  the  Court  were  undoubtedly 
influenced  by  their  individual  political  views  and 
the  section  of  the  country  from  which  they  were 
appointed. 

Thus  the  Chief  Justice,  Taney,  a  Marylander — 
and  Maryland  was  a  slave  State — who  had  owned 
slaves  himself,  whose  ancestors  had  owned  slaves, 
and  who  was  a  strict  constructionist  in  his  view  of 
interpreting  the  Federal  Constitution,  was  besides  a 
Democrat,  and  the  Democratic  Party  had  become 
the  pro-slavery  party  of  the  Nation.  Of  the  other 
five  members  of  the  Tribunal  who  likewise  declared 
the  Missouri  Compromise  unconstitutional  four 
were  citizens  of  slave  States.  Wayne  came  from 
Georgia,  Campbell  from  Alabama,  Catron  from 
Tennessee  and  Daniel  from  Virginia,  all  four  slave 
States  which  afterwards  seceded  from  the  Union. 
Justice  Grier,  the  sixth  member  of  the  Court,  who 


THE   UNITED   STATES   SUPREME   COURT.  107 

voted  to  declare  the  Missouri  Compromise  uncon- 
stitutional by  concurring  with  Taney's  opinion, 
while  a  citizen  of  a  free  State,  Pennsylvania,  was  a 
Democrat  in  his  bringing  up  and  in  his  appoint- 
ment to  the  bench.  Pennsylvania  was  still  at  that 
time  what  it  had  been  for  many  years  before, 
a  Democratic  State,  having  cast  in  1856  her 
electoral  vote  for  James  Buchanan,  who  was 
President  of  the  United  States  when  the  judg- 
ment in  the  Dred  Scott  case  was  handed  down. 
Indeed  he  was  the  only  Pennsylvanian  who 
had  reached  the  Presidency.  Buchanan,  a  firm 
defender  of  the  slave  power,  repeatedly  upheld, 
before  the  Dred  Scott  case  came  up  for  trial,  in  his 
speeches  and  public  writings  the  constitutionality  of 
the  Missoiiri  Compromise,  while  after  the  United 
States  Supreme  Court  had  pronounced  in  the  Dred 
Scott  case  that  compromise  unconstitutional,  thereby 
opening  the  territories  north  of  thirty-six  degrees 
thirty  minutes  to  slavery,  Buchanan  said  not  a  word 
in  favor  of  the  Missovui  Compromise  as  had  been  his 
habit  years  before/"  On  the  contrary,  the  Presi- 
dent, who  was  advised  in  advance  of  the  decision 

™  The  Works  of  James  Buchanan,  edited  by  John  Bassett  Moore, 
Philadelphia,  Volume  IV.,  page  28,  Volume  VII.,  pages  386-387, 
Volume  X.,  page  459  et  seq.,  Volume  XI.,  page  11. 


108  A    WORLD   COURT    IN   THE   LIGHT   OF 

of  the  Court  by  two  of  its  members,  upheld  the 
decision  of  the  Court  declaring  the  Missouri  Com- 
promise unconstitutional 7'  And  Buchanan  used 
his  great  influence  to  persuade  Grier,  his  fellow 
Pennsylvanian,  to  go  on  record  against  the  consti- 
tutionality of  the  Missouri  Compromised^  Justice 
Nelson  who  held  that  Dred  Scott  remained  a  slave 
in  Missouri  on  the  ground  that  the  State  Law  of 
Missouri  decided  the  status  of  Scott,  but  who,  while 
actually  agreeing  with  the  majority  of  the  Court 
that  the  Missouri  Compromise  was  unconstitu- 
tional, would  not  join  in  giving  an  opinion  to  that 
effect,  was  a  Democrat  in  politics  and  came  from 
New  York,  a  free  State.  His  opinion  was  in  the 
nature  of  a  compromise  decision,  in  that  he  would 
not  publicly  express  himself  upon  the  question  of 
the  Missouri  Compromise.  The  two  dissenting 
members  of  the  Tribunal  were  Justices  McLean  and 
Curtis.  The  former  was  from  Ohio,  a  free  State, 
was  himself  a  Free-Soiler  and  in  addition  several 
times  was  a  strong  candidate  for  the  Republican 


"  The  Works  of  James  Buchanan,  edited  by  John  Bassett  Moore, 
Philadelphia,  Volume  X.,  pages  106,  341. 

"  The  Works  oj  James  Buchanan,  edited  by  John  Bassett  Moore, 
Philadelphia,  Volume  X.,  page  106. 


THE    UNITED    STATES    SUPREME    COURT.  109 

nomination  for  President J^  Curtis,  who  came  from 
Massachusetts,  a  hot  anti-slavery  State,  was  a 
Whig  and  owed  his  appointment  to  the  bench  by 
President  Fillmore  to  Daniel  Webster,  who  had 
been  one  of  the  leaders  of  the  anti-slavery  forces/* 

Time  has  proved  that  Justice  Nelson,  who 
belonged  to  the  pro-slavery  Democratic  Party,  but 
who  came  from  the  free  State  of  New  York,  was  the 
wisest  of  all  the  members  of  the  Court  in  that  he 
favored  a  decision  which  was  a  compromise.  The 
eagerness  of  the  majority  of  the  Tribunal  after 
Buchanan's  election  to  the  Presidency  to  hand 
down  a  decision  in  favor  of  the  expansion  of  slavery 
within  the  Union,  so  far  from  settling  the  con- 
troversy in  favor  of  the  slave  power,  ultimately 
destroyed  slavery  where  it  existed  under  the  protec- 
tion of  the  Federal  Constitution.  For  the  judgment 
of  the  majority  declaring  the  Missouri  Compromise 
unconstitutional  insured  the  Civil  War. 

Analyzing  the  reasoning  in  the  opinions  given 
by  the  majority  of  the  Court  in  the  Dred  Scott 
case,    Professor    Corwin    of    Princeton    University 

''  James  Ford  Rhodes :  History  of  the  United  States  from  the  Com- 
promise of  i8jo,  New  York,  1896,  Volume  II.,  pages  179,  182,  184. 

^*  James  Ford  Rhodes:  History  of  the  United  States  from  the  Com- 
promise of  18 jo,  New  York,  1896,  Volume  II.,  page  251. 


110  A    WORLD   COURT    IN    THE    LIGHT    OF 

pertinently  says:^*  "When,  as  in  this  case,  the 
student  finds  six  judges  arriving  at  precisely  the 
same  result  by  three  distinct  processes  of  reasoning, 
he  is  naturally  disposed  to  surmise  that  the  result 
may  possibly  have  induced  the  processes  rather 
than  that  the  processes  compelled  the  result,  though 
of  course  such  surmise  is  not  necessarily  sound; 
but  when  he  discovers  further  that  the  processes 
themselves  were  most  deficient  in  that  regard  for 
history  and  precedent  in  which  judicial  reasoning 
is  supposed  to  abound,  his  surmise  becomes  sus- 
picion; and  finally  when  he  finds  that  beyond 
reasoning  defectively  upon  the  matter  before  them, 
the  same  judges  deUberately  gloss  over  material 
distinctions  (as  for  example,  in  this  case,  the  dis- 
tinction between  sojourn  and  domicile)  and  ignore 
precedents  that  they  have  themselves  created  (as 
for  example,  in  this  case,  the  decisions  regarding 
the  operation  of  State  decisions  upon  questions  of 
comity)  his  suspicion  becomes  conviction.  The 
Dred  Scott  decision  cannot  be,  with  accuracy, 
written  down  as  usurpation,  but  it  can  and  must 
be  written  down  as  a  gross  abuse  of  trust  by  the 
body  which  rendered  it." 

^*  Edward  S.  Corwin:    The  Doctrine  oj  Judicial  Rtriem,  Princeton, 
1914,  page  156. 


THE   UNITED   STATES   SUPREME   COURT.  Ill 

In  reading  the  above  criticism  it  should  not  be 
forgotten  that  the  two  dissenting  justices  also 
allowed  political  considerations  to  influence  their 
opinions. 

With  all  their  learning  and  sense  of  honor,  the 
members  of  the  Court  were  human.  And  even 
though  they  were  protected  by  a  life  tenure  in  the 
positions  that  they  held,  and,  so  far  as  human 
ingenuity  could  provide,  raised  above  and  outside 
of  political  parties  and  interest,  still  they  were  men 
swayed  by  human  passions.  In  a  question  which 
went,  in  the  consequences  that  would  flow  from 
its  solution,  to  the  very  vitals  of  the  economic  life 
of  one  of  the  two  hostile  sections  into  which  the 
American  people,  as  a  restilt  of  slavery,  had  become 
divided,  it  was  impossible  for  the  nine  members 
of  the  Supreme  Covirt  of  the  United  States  to 
divest  their  individual  views  entirely  of  their 
political  and  geographical  sympathies.  And  which- 
ever way  they  gave  their  individual  judgments, 
they  were  sure  to  be  attacked  by  one  political 
party  or  the  other  as  having  violated  their  duty 
and  been  influenced  by  political  considerations. 

So  it  was  that  all  these  judges,  who  were  able  and 
capable  men,  with  a  high  sense  of  honor,  were  neces- 
sarily swayed  more  or  less  by  their  political  training 


112  A    WORLD    COURT    IN   THE    LIGHT    OP 

and  sympathies  in  reaching  the  conclusions  which 
they  did  in  the  Dred  Scott  case.  Their  views  were 
hotly  criticised  by  the  political  party  which  held 
views  opposed  to  their  individual  judgments.  And 
the  majority  were  accused  by  the  Republicans  of 
having  exceeded  their  powers  in  the  judgment  at 
which  they  had  arrived. 

Of  late  years,  too,  in  the  United  States,  not  only 
the  State  Courts  and  the  lower  Federal  Tribunals 
have  been  attacked  vigorously,  by  certain  sections 
of  the  community  because  of  the  decisions  that  the 
judges  of  those  tribunals  gave  (until  the  judges  have 
been  in  a  measure  terrorized  by  public  opinion); 
but  even  the  Supreme  Federal  Tribunal  of  the 
Nation  has  been  adversely  criticised  on  account  of 
its  decisions.  So  far  has  this  movement  of  attack 
of  judicial  decisions  by  the  public  gone  in  America, 
that  the  recall  of  judicial  decisions  and  even  the 
recall  of  judges  have  been  advocated  openly  by  men 
of  high  position  and  distinction  as  well  as  by  others 
who  knew  little  or  nothing  about  what  they  have  so 
glibly  attacked  and  adversely  criticised.  In  other 
words,  the  splendidly  devised  American  Federal 
judicial  system  has  not  been  able  to  satisfy  all  public 
opinion. 

During  the  trial  of  the  Dreyfus  case  in  France 


THE   UNITED    STATES   SUPREME   COURT.  113 

before  the  Cour  de  Cassation — the  highest  civil 
tribunal  of  France,  whose  members  were  judges 
assuredly  learned  in  the  law  both  by  years  of  study 
and  practice  on  the  bench — that  high  Court  was 
attacked  as  being  partisan  and  non-judicial  in  its 
decision  in  that  celebrated  case,  just  as  years  before 
the  Supreme  Court  of  the  United  States  was  accused 
of  gross  partisanship  in  its  decision  in  the  equally 
celebrated  Dred  Scott  case.  Those  two  Courts, 
though  judicial  tribunals,  whose  members  were 
trained  judges,  with  life  appointments,  did  not 
satisfy  all  public  opinion  any  more  than  the  ad  hoc 
Hague  International  Courts  have  satisfied  all  people. 
Such  a  Supreme  Court  of  the  World,  however,  as 
the  American  delegation  at  the  Second  Hague 
Peace  Conference  was  instructed  to  urge  upon  the 
Nations,  would  not  be  truly  a  Supreme  Court  of  the 
World,  in  the  sense  that  the  Supreme  Court  of  the 
United  States  of  America  or  the  Cour  de  Cassation 
of  France  are  Courts.  For  back  of  such  a  Supreme 
Court  of  the  World  there  would  not  be,  any  more 
than  there  was  back  of  the  International  Tribunals 
which  sat  respectively  upon  the  Alabama  Claims 
and  the  Bering  Sea  Fur  Seal  cases,  the  power  of 
compulsion.  Just  as  in  those  two  specific  cases,  as 
likewise  in  the  Venezuela  and  other  cases  referred 


114  A    WORLD   COURT   IN  THE   LIGHT   OP 

to  an  International  Court  named  ad  hoc,  the  exe- 
cution of  the  judgment  in  every  case  taken  to  such 
a  Supreme  Court  of  the  World  would  rest  upon  the 
willingness  of  the  contending  Nations  to  bow  before 
and  carry  into  execution  the  decree  of  the  Court. 

It  is  necessary  not  to  forget,  besides,  that  were 
such  a  Supreme  Court  of  the  Nations  in  existence, 
between  it  and  the  Municipal  Courts  of  the  indi- 
vidual Nations,  there  would  exist,  just  as  between 
International  Tribunals  named  ad  hoc  and  the 
Municipal  Courts  of  the  individual  Nations,  there 
does  exist,  an  additional  radical  difference  which 
has  not  been  often  observed.  In  the  cases  arising 
between  individuals  that  are  taken  to  the  bar  of 
Municipal  Tribunals,  the  judges  do  not  have  to 
contend  with  their  personal  feelings  in  favor  of  one 
side  or  the  other.  Practically  in  all  cases  the  judges 
do  not  know  the  litigants  and  the  feelings  of  the 
judges  are  not  enlisted  strongly  for  one  party  or  the 
other.  If  a  case  arose  where  the  feelings  of  a  judge 
were  deeply  stirred  for  any  cause  in  favor  of  one  side 
or  the  other,  it  would  be  improper  for  him  to  sit  to 
try  that  case. 

On  the  contrary,  when  Nations  appear  before  an 
International  Tribunal  whether  named  ad  hoc  or 
sitting  permanently,  the  litigants  are  not  unknown 


THE    UNITED   STATES    SUPREME    COURT.  115 

to  the  individual  judges.  In  cases  between  Nations, 
the  way  a  question  at  issue  is  decided  in  favor  of  one 
side  or  the  other  may  materially  affect  not  only  the 
interests  of  the  litigant  Nations,  but  also,  favorably 
or  adversely,  the  future  status  of  other  Nations  that 
do  not  appear  in  the  case  at  all.  And  as  a  conse- 
quence in  pohtical  cases,  the  feelings  of  the  individual 
judges  of  an  International  Tribimal,  whether  it  be 
merely  temporary  or  continuous  in  its  status,  will  be 
more  or  less  influenced  by  the  interests  of  their  own 
coxmtry,  according  as  its  interests  directly  or  in- 
directly are  more  or  less  affected  by  the  judgment  to 
be  rendered  by  the  Court. 

In  those  cases  where  the  American  Federal 
Supreme  Court  is  called  upon  to  judge  between  two 
individual  member  States  of  the  Union,  the  con- 
ditions are  more  similar  to  the  cases  where  individual 
citizens  are  the  contestants  before  it  than  in  the 
international  cases  when  Nations  appear  as  litigants 
before  an  International  Tribunal.  Why?  Because 
when  two  States  of  the  Union  appear  at  its  bar  as 
litigants  upon  a  question  which  is  purely  a  bone  of 
contention  between  them,  not  only  is  the  power  of 
all  the  United  States,  owing  in  part  to  the  pressure 
of  the  outside  world,  behind  the  Cotirt  to  enforce  its 
judgment,  but  also  the  future  safety  and  existence 


116  A    WORLD   COURT   IN   THE    LIGHT   OP 

of  neither  State  is  really  endangered  by  the  decision. 
The  individual  States  of  the  Union  are  not  exposed 
to  be  divided  up  and  annexed  in  parcels  or  in  tola 
to  some  of  the  other  States  as  is  the  case  with 
members  of  the  family  of  Nations.  For  between 
two  member  States  of  the  United  States  the  ques- 
tion of  which  is  the  stronger  independently  of  the 
legal  merits  of  any  controversy  cannot  arise. 

This  immunity  from  dismemberment  and  absorp- 
tion of  one  member  State  by  another  within  the 
United  States  of  America  is  due  in  part  to  the  need 
of  all  the  forty-eight  States  which  constitute  the 
Union  to  remain  united  and  live  in  peace  together 
in  order  to  afford  a  united  and  strong  front  for 
mutual  protection  against  the  other  Nations  of 
the  world.  The  elimination  of  the  danger  of  absorp- 
tion of  one  member  State  of  the  Union  by  another 
in  contradistinction  with  the  desire  of  members  of 
the  family  of  Nations  to  conquer  and  absorb  another 
Nation,  is  due  in  part  also  to  the  fact  that  within 
all  the  bounds  of  the  United  States  of  America 
there  is  entire  freedom  of  trade  and  migration, 
while  between  the  members  of  the  family  of  Nations 
there  is  restriction  of  trade  and  some  restriction  of 
migration.  Consequently,  the  individual  State  pre- 
judices of  each  member  of  the  American  Federal 


THE    UNITED    STATES    SUPREME    COURT.  117 

Supreme  Court  are  not  as  strongly  aroused,  except 
in  instances  like  the  Dred  Scott  case,  as  are  the 
national  prejudices  of  the  judges  of  International 
Courts  in  all  cases  which  affect  the  relative  power 
and  influence  of  Nations. 

*  In  those  cases  between  sovereign  Nations,  upon 
whose  solution  depends  the  futvu-e  power  of  one  or 
more  of  the  litigant  Nations,  and  possibly  of  other 
Nations  not  directly  parties  to  the  controversy, 
there  is  no  more  reason  to  expect  the  elimination  of 
the  nationalistic  feeling  of  the  individual  judges, 
whether  nationals  of  the  contestants  or  not,  than 
it  was  possible  for  the  individual  members  of  the 
Supreme  Covirt  of  the  United  States  of  America  to 
eliminate  their  political  feelings  in  the  Dred  Scott 
case,  in  which  was  involved  the  fundamental  political 
question  of  whether  the  free  or  the  slave  States  of 
the  North  American  Union  should  ultimately  win  the 
ascendency  in  the  country.  And  consequently,  in 
sitting  upon  such  cases,  every  judge  of  a  Supreme 
Court  of  the  World  would  in  some  degree  be  influ- 
enced, in  the  present  organization  of  the  family  of 
Nations,  by  the  interests  of  his  own  country. 

Commenting  on  international  questions  which 
might  arise  involving  matters  concerning  a  Nation 
itself  as  an  integral  entity,  the  Marquis  of  Salisbury, 


118  A    WORLD  COURT   IN   THE    LIGHT   OF 

Prime  Minister  of  Great  Britain,  in  a  dispatch 
addressed  in  March,  1896,  to  Sir  Julian  Pauncefote, 
the  British  Ambassador,  in  Washington,  said  with 
pungent  force  :^® 

"If  the  matter  in  controversy  is  important,  so 
that  defeat  is  a  serious  blow  to  the  credit  or  the 
power  of  the  litigant  who  is  worsted,  that  interest 
becomes  a  more  or  less  keen  partisanship.  Accord- 
ing to  their  sympathies,  men  wish  for  the  victory 
of  one  side  or  another. 

"Such  conflicting  sympathies  interfere  most  for- 
midably with  the  choice  of  an  impartial  arbitrator. 
It  would  be  too  invidious  to  specify  the  various 
forms  of  bias  by  which,  in  any  important  con- 
troversy between  two  great  powers,  the  other 
members  of  the  commonwealth  of  Nations  are 
visibly  afifected.  In  the  existing  condition  of  inter- 
national sentiment,  each  great  power  could  point  to 
Nations  whose  admission  to  any  jury  by  whom 
its  interests  were  to  be  tried,  it  would  be  bound  to 
challenge;  and  in  a  litigation  between  two  great 
powers  the  rival  challenges  would  pretty  well 
exhaust  the  catalogue  of  the  Nations  from  whom 
competent  and  suitable  arbiters  could  be  drawn," 

^•john  Bassett  Moore:     International  Arbitrations  to  which  the 
United  States  has  been  a  parly,  Washington,  1898,  Volume  I.,  page  964. 


THE    UNITED    STATES    SUPREME    COURT.  119 

Men  who  will  at  all  times  rise  above  their  per- 
sonal feelings  and  always  try  to  find  in  their  con- 
science the  right  thing  to  do,  and  then  do  it  regard- 
less of  consequences  to  themselves,  are  rare,  extremely 
rare.  It  is  only  such  men,  however — and  how  few 
and  far  between  such  men  are,  history  tells  us 
only  too  well — that  could  be  depended  upon  at  all 
times,  whether  sitting  in  an  International  Tribunal 
named  ad  hoc  or  a  Supreme  Court  of  the  Nations, 
to  avoid,  in  judging  between  the  Nations,  all  ele- 
ments of  an  opportunistic  compromise  and  to  strive 
honestly  to  give  only  a  judicial  judgment.  A  man 
of  that  type  means  the  embodiment  of  the  highest 
kind  of  courage.  But  woidd  even  a  man  of  that 
high  and  noble  stamp  of  character,  deliberately 
decide  in  favor  of  what  he  believed  would  eventually 
destroy  or  seriously  weaken  and  impair  the  power 
of  his  own  country  at  the  council  board  of  the 
Nations?  The  individual  judgments  in  the  Dred 
Scott  case  seem  to  answer  "no." 

Supposing,  however,  that  all  the  members  of  the 
family  of  Nations  agree  in  setting  up  such  a  Supreme 
Court  of  the  World,  it  should  not  be  forgotten  that 
there  will  be  no  force  outside  of  the  family  of 
Nations  compelling  them  to  bow  to  the  judgments 
of  such  a  Tribunal.     In  that  essential  respect  a 


120  A    WORLD   COURT   IN  THE   LIGHT   OP 

Supreme  Court  of  the  World  would  differ  radically 
from  the  Supreme  Court  of  the  United  States  of 
America.  For  at  all  times  since  the  North  Ameri- 
can English-speaking  colonies  declared  their  inde- 
pendence, the  member  States  of  the  United  States 
of  America,  whether  in  the  time  of  the  Confedera- 
tion or  in  that  of  the  Union  have  had  the  con- 
sciousness of  the  existence  of  the  powers  of  the  rest 
of  the  outside  world  to  induce  the  member  States 
of  the  United  States  of  America  to  bow  in  the  begin- 
ning before  the  judgment  of  the  Trenton  Inter- 
State  Court  and  afterwards  before  the  judgments 
of  the  Federal  Supreme  Court.  And  yet  when  the 
States  of  that  Union  were  divided  into  two  camps 
of  almost  equal  power  that  differed  radically  over  an 
economic  question  which  went  to  the  core  of  the 
well-being  of  the  Nation,  the  existence  of  that  great 
outside  force  represented  by  the  other  Nations  of 
the  world,  could  not  induce  the  member  States  of 
the  North  American  Union  to  refrain  from  taking 
up  arms.  Regardless  of  the  judicial  judgment  of 
the  Federal  Supreme  Court  about  the  slavery  ques- 
tion, the  two  groups  of  States  went  to  war.  And 
it  took  four  years  of  bloody  and  costly  civil  strife 
to  decide  which  was  the  stronger. 

After    the    judgment    of    the    Court    had    been 


THE   UNITED   STATES   SUPREME   COURT.  121 

reversed  by  civil  war,  and  slavery  abolished  in  all 
the  Union,  the  individual  member  States  of  the 
Union  have  once  more  bowed  again  and  again  to  the 
judgments  of  the  Federal  Supreme  Court.  But  if 
the  Supreme  Court  of  the  United  States  could  not 
by  a  judgment  avoid  a  civil  war  within  the  North 
American  Union  over  a  political  question  upon 
which  the  member  States  were  divided  into  two 
fairly  equal  groups,  is  it  likely  that  a  Supreme 
Court  of  the  World  will  by  its  judgments  be  able  to 
compass  in  peace  the  political  quarrels  dividing  the 
powers  of  the  world  into  two  fairly  equal  groups  ?  For 
in  the  latter  case  there  will  not  be  any  force  outside 
of  the  Nations  of  the  world  to  restrain  them  from 
going  to  war  as  was  the  case  in  1861  for  the  member 
States  of  the  North  American  Union,  who  neverthe- 
less, in  spite  of  the  fact  that  there  were  many  great 
and  powerful  Nations  outside  of  the  United  States 
jealous  of  the  power  and  success  of  the  Union,  resorted 
to  war  to  settle  a  fundamentally  important  economic 
question  of  difference  upon  the  opposing  sides  of 
which  the  member  States  of  the  Union  had  aligned 
themselves  in  two  almost  equally  powerful  groups. 

Or  to  take  an  actual  instance  from  the  present 
politics  of  the  world.  To-day  the  Great  War  which 
is   raging   in    Europe,    raises   the    question: — If   a 


122  A    WORLD   COURT   IN   THE    LIGHT  OP 

Supreme  Court  of  the  World  always  in  being,  com- 
posed of  fifteen  judges  appointed  for  life,  had  been 
sitting  at  The  Hague  in  June  and  July,  19 14,  would 
the  existence  of  such  a  Tribunal  have  prevented  the 
war  any  more  than  did  the  existence  of  the  actual 
machinery  for  calling  into  being  an  International 
Court  at  The  Hague  for  a  single  case?  The  Nations 
of  Europe  failed  in  this  instance,  even  after  Presi- 
dent Wilson  had  offered  his  good  offices  by  way  of 
mediation,  to  avail  themselves  of  the  present  facilities 
for  submitting  disputes  between  Nations  to  the  judg- 
ment of  an  international  judicial  Court,  appointed 
to  sit  at  the  Dutch  Capital  to  judge  the  one  single 
case  for  which  each  individual  international  Tribunal 
is  imder  the  present  Hague  conventions  called  into 
existence.  If  a  small  permanent  Court — composed 
for  example  of  fifteen  judges — had  been  constantly 
in  being  at  The  Hague  to  judge  all  manner  of  cases  of 
dispute  arising  between  Nations,  would  the  Nations 
of  Europe  have  called  upon  the  permanent  Tribunal 
to  settle  the  causes  leading  to  the  present  war? 

In  view  of  the  deep  antagonisms  existing  between 
the  Teutons  and  the  Slavs  in  the  east  of  Europe, 
between  the  Teutons  and  the  French  in  the  west  of 
Europe,  between  Germany  and  Great  Britain  through 
the  jealousy  for  commercial  supremacy  aroused  by 


THE    UNITED    STATES    SUPREME    COURT.  123 

the  keen  competition  for  over-sea  commerce  and 
other  deep  lying  causes  stretching  far  back  in  the 
historic  development  of  Europe,  it  is  hard  to  believe 
that  a  Supreme  Court  of  the  World  could  have  com- 
posed the  quarrel  of  the  European  Nations  in  1914 
any  better  than  the  actual  present  international 
judicial  machinery  provided  for  by  the  Second 
Hague  Peace  Conference  could  have  done  it,  had  the 
Nations  appealed  to  one  of  The  Hague  International 
Courts  named  ad  hoc.  For  no  more  than  one  of  The 
Hague  ad  hoc  Tribunals  could  a  Supreme  Court  of 
the  Nations  have  decided  which  group  of  Nations 
was  the  stronger,  and  so  entitled  to  appropriate  for 
itself  the  lion's  share  of  the  commerce  of  the  world. 
That  decision  is  now  being  sought  in  trial  by  battle. 
It  would  seem  then,  that,  in  the  final  analysis, 
the  only  way  a  Supreme  Court  of  the  World  could 
force  individual  Nations  to  bow  before  its  decisions 
in  all  cases,  would  be  the  development  of  an  inter- 
national executive  with  sufficient  power  at  its  com- 
mand to  enforce  the  decisions  of  that  Supreme  Court 
of  the  World,  just  as  behind  the  Supreme  Covirt  of 
the  United  States  of  America  has  stood,  always 
excepting  in  the  Dred  Scott  case,  the  overwhelming 
power  of  the  Nation  as  against  any  one  single  member 
State  of  the  North  American  Union. 


124  A    WORLD   COURT   IN   THE   LIGHT  OP 


PART  VIII. 

Is  there  any  force,  however,  to  urge  the  family 
of  Nations  to  form  and  enter  into  a  world  wide 
organization  established  for  the  purpose  of  elimi- 
nating war  as  the  ultimate  manner  of  settling  their 
serious  disagreements,  and  to  replace  war  by  the 
application  of  the  rules  of  the  Law  between  Nations 
as  interpreted  by  a  Supreme  Court  of  the  World 
seeking  to  award  justice?  Evidently  there  is  no 
force  or  power  outside  of  the  family  of  Nations  to 
compel  them  to  form  such  a  world  confederation  with 
the  aim  of  preventing  any  member  Nation  from 
breaking  out  into  war. 

If  there  is  no  force  outside  all  the  Nations  of  the 
world  compelling  them  to  hold  the  peace  among 
themselves  comparable  with  the  force  representing 
the  Nations  of  the  world  outside  of  the  North 
American  Union,  which  compelled  the  individual 
States  of  that  Union  to  gradually  unite  into  the 
single  Nation  of  to-day  and  finally  to  bow  before  the 
decisions  of  the  Supreme  Court  of  the  United  States, 
it  should  not  be  forgotten  that  taere  is,  however, 
within  the  Nations  of  the  world  themselves,  a  force 
driving  toward  peace.     This  force  arises  from  the 


THE    UNITED   STATES    SUPREME   COURT.  125 

fact  that  the  destruction  of  Hfe  and  wealth  wrought 
by  modem  war  as  well  as  the  destruction  of  wealth 
caused  by  the  preparation  in  times  of  peace  for  war 
is  so  tremendous  that  immense  sviifering  both  im- 
mediate and  for  the  future  are  thereby  inflicted  upon 
the  inhabitants  of  the  belligerent  Nations,  and  in- 
directly in  many  cases  upon  the  neutrals.  As  with 
the  opening  of  the  present  century  the  people  have 
come  to  realize  better  the  sufferings  imposed  by  war, 
they  have  dreaded  more  and  more  the  outbreak  of 
war,  and  have  become  by  degrees  less  belligerent  in 
their  passions.  In  addition,  owing  to  the  inter- 
locking more  and  more  of  the  commerce  of  each 
Nation  directly  or  indirectly  with  that  of  other 
Nations  the  world  over,  the  bill  for  the  wealth 
destroyed  now  by  war  must  eventually  be  paid  in  a 
more  or  less  degree  by  every  Nation,  even  by  the 
neutrals.  For  if  the  belligerent  States  become 
impoverished  and  bankrupt  by  war,  they  are  in  no 
condition  afterwards  to  trade  with  those  that  remain 
neutral  to  the  same  extent  that  they  did  before  the 
beginning  of  hostilities.  And,  though  a  Nation  may 
remain  at  peace  and  neutral  during  a  war,  still,  if  its 
best  customers  are  impoverished  by  war  the  neutral 
Nations  must  suffer  in  the  long  run  owing  to  the 
inability  of  its  former  good  customers  to  continue 


126  A    WORLD   COURT   IN   THE    LIGHT   OP 

trading  with  the  Neutral  powers  on  the  same  scale 
as  before  the  war.  The  gradual  realization  that  the 
struggle  for  life  is  made  more  difficult  for  the  sur- 
viving mass  of  humanity  as  a  result  of  the  destruction 
of  wealth  by  war  will  strengthen  the  desire  of  man- 
kind to  eliminate  war,  as  far  as  possible,  by  a  refer- 
ence, whenever  it  is  possible,  of  international  differ- 
ences to  judicial  settlements  instead  of  an  appeal  to 
arms. 

One  important  factor  helping  the  desire  for  the 
elimination  of  war,  is  the  increasing  realization  of 
the  people  that  war,  among  other  effects,  causes  a 
serious  impairment  to  the  well  being  of  the  human 
race  through  the  premature  destruction  of  the 
young  men  of  superior  physical  and  mental  attain- 
ments, for  it  is  they  who  are  naturally  sent  to  the 
front  while  the  weak  and  feeble  in  both  mind  and 
body  are  more  likely  to  be  left  at  home.  In  that 
respect,  war  reverses  for  humanity  the  processes  by 
which  the  human  race  seeks  to  improve  the  breed  of 
horses,  cattle  and  other  domesticated  animals. 
Thus,  for  instance,  on  every  stock  farm  stallions, 
who  are  chosen  with  great  care  from  among  their 
fellows  expressly  because  they  are  possessed  of 
superior  physical  qualities  over  the  average  run  of 
stallions,  are  kept  solely  for  the  object  of  serving  the 


THE    UNITED   STATES   SUPREME   COURT.  127 

brood  mares  for  the  purposes  of  breeding.  Not 
only  are  these  stallions  chosen  because  of  their  fine 
physical  attributes  to  serve  the  brood  mares,  but 
also  the  greatest  care  is  taken  in  choosing  the  mares 
which  are  best  fitted  to  be  given  to  each  individual 
stallion  for  the  purpose  of  the  reproduction  of  their 
species.  In  that  way  the  race  of  the  noble  horse, 
who  has  labored  so  long  and  well  for  mankind,  has 
been  kept  up  and  improved.  In  the  case  of  human- 
ity, however,  the  men  best  suited  physically  and 
mentally  to  marry  and  father  the  next  generation 
are,  nattirally,  in  war  times,  the  first  to  be  sent  to 
the  front,  while  the  weaklings  are  the  last  to  go. 
Consequently,  a  greater  proportion  of  the  children 
of  the  next  generation  are  fathered  by  men  of  less 
desirable  physical  and  mental  types  than  usual,  and 
some  of  the  impairment  of  power  of  these  weaklings 
is  transmitted  to  their  children,  no  matter  how 
superior  physically  and  mentally  may  be  the  woman 
with  whom  they  each  individually  mate. 

The  desire  to  avoid  war,  because  of  the  fear  of 
the  loss  of  life  and  the  destruction  of  property  and 
the  waste  of  labor  that  result  from  war,  is  not  a 
sufficiently  strong  force  to  cause  Nations  in  all 
cases  of  difference  to  resort  to  international  judicial 
proceedings    rather   than    to    war   to    settle    their 


128  A    WORLD   COURT    IN   THE    LIGHT    OF 

disputes.  The  desire  to  possess  what  others  already 
have  in  many  instances  is  so  strong  as  to  lead  to  a 
trial  by  battle  to  find  out  which  side  is  the  stronger. 
The  experience  to  be  found  in  the  history  of 
humanity  would  seem  to  show  that  if  all  war 
between  Nations  is  to  be  avoided,  then  some  inter- 
national or  supemational  force  must  be  devised 
which  will  compel  Nations  to  take  their  diflferences 
into  International  Courts,  or  the  International 
Supreme  Court  of  the  possible  future,  just  as  within 
Nations  a  force  has  been  devised  which  compels 
individuals  to  take  their  disputes  into  Municipal 
Courts.  If  it  was  not  for  the  power  of  the  sheriff, 
with  all  the  power  of  the  State  looming  up  behind 
him,  how  many  individuals  would  refuse  to  appear 
before  Municipal  Courts  who  now  quietly  obey  the 
summons  to  appear  before  the  Municipal  Tribunals. 
And  in  questions  which  affect  the  vital  interests  of 
Nations,  it  may  be  expected  that  the  Nations  will 
not  go  into  Court  to  settle  such  questions  unless 
there  is  a  force  sufficiently  strong  to  compel  them. 
In  what  way  is  the  upbuilding  of  some  general 
international  organization  of  sufficient  force  and 
power  to  compel  all  members  of  the  family  of 
Nations  to  desist  from  war  and  submit  all  their 
differences,  both  legal  and  political,  to  one  of  the 


THE    UNITED    STATES    SUPREME    COURT.  129 

International  Courts  named  ad  hoc  at  The  Hague, 
or  to  a  Supreme  Court  of  the  World  most  likely 
to  be  expected  or  attained? 

To  successfully  establish  at  The  Hague  a 
Supreme  Court  of  the  Nations  of  the  world, 
modeled  upon  the  Supreme  Court  of  the  United 
States  of  America,  to  settle  the  differences  of  the 
Nations,  involves  a  problem  different  in  many 
respects  from  that  which  confronted  the  thirteen 
American  States  when  they  originated  and  set  up 
their  present  Federal  Supreme  Tribunal.  In  the 
original  thirteen  American  States,  with  a  local 
exception  in  part  of  Pennsylvania,  the  people  of 
all  the  States  spoke,  with  slight  variations,  the 
same  English  language;  and  a  common  tongue  is 
perhaps  the  most  important  basis  of  nationality. 
And  these  thirteen  States  were  drawn  closer  to 
one  another  and  impelled  to  join  together  because 
of  their  fear  of  the  outside  world.  The  Nations  of 
the  world,  unlike  the  original  thirteen  North 
American  States,  do  not  speak  one  language,  but 
on  the  contrary,  speak  even  more  tongues  than 
there  are  separate  and  individual  Powers  in  the 
world.  And  the  Nations  of  the  world  are  not  driven 
by  fear  of  a  power  or  force  outside  of  their  circle 
into  a  common  union  whose  individual  members 


130  A    WORLD   COURT   IN  THE   LIGHT   OP 

shall  submit  their  diflferences  to  a  Supreme  Court 
of  the  World,  in  the  same  way  that  the  member 
States  of  the  Confederation  of  the  United  States 
of  America  were  compelled,  by  the  fear  of  the 
outside  world,  to  join  together  more  closely  and 
agree  to  submit  their  discords  or  quarrels  to  the 
Supreme  Court  of  the  United  States. 

The  teaching  of  the  past  efforts  of  humanity  to 
minimize  or  eliminate  war  from  the  politics  of  the 
world  show  that  this  cannot  be  accomplished  in  the 
international  sphere  of  the  family  of  Nations  by  one 
master  stroke  of  statecraft,  but  that  that  aim  can 
only  be  attained,  if  it  is  attainable,  by  the  slow  and 
gradual  processes  of  evolution."  All  attempts  up 
to  now  to  devise  some  scheme  or  plan  to  altogether 
eliminate  the  scourge  of  war  from  human  affairs  have 
failed,  just  as  all  efforts  so  far  to  stamp  out  consump- 
tion and  cancer  have  failed.  But  on  many  single 
occasions,  war  has  been  avoided  by  substituting  for 
war  an  appeal  to  judicial  proceedings.  In  such  cases, 
however,  no  attempt  was  made  to  eliminate  all  war 

"Thomas  Willing  Balch:  L' Evolution  de  l' Arbitrage  International 
Revue  de  Droit  International  el  de  Legislation  ComfiarSe,  Brussels, 
1908, also  reprinted  in  book  form  at  Philadelphia,  1908. — John  Bassctl 
Moore:  The  Peace  Problem:  Columbia  University  Quarterly,  June, 
1916. 


THE    UNITED    STATES    SUPREME    COURT.  131 

for  all  time  from  human  affairs.  Consequently, 
obedient  to  the  natural  law  of  evolution,  in  our 
efforts  to  replace  international  war  as  much  as 
possible  by  international  justice  as  the  final  judge 
between  Nations,  we  should  seek  to  advance  the 
cause  of  international  justice  step  by  step  rather 
than  hastily  and  prematurely  to  establish  a  world 
confederation  with  a  Supreme  Court  of  the  World. 
Such  a  Supreme  Tribunal  of  the  Nations  would  at 
present  lack  behind  it  that  overwhelming  power  to 
enforce  its  decisions  which  is  found  personified  back 
of  the  judgments  of  Municipal  Tribunals  in  all  the 
power  and  force  of  that  particular  Nation  of  which 
each  individual  Municipal  Court  forms  a  part. 

As  a  consequence  such  a  Tribunal,  just  as  the 
International  Tribunals  now  instituted  ad  hoc  under 
The  Hague  agreements,  practically  could  only  deal 
with  legal  cases,  that  is  those  cases  which,  because 
no  vital  interests  of  Nations  were  at  stake,  the 
Nations  would  be  willing  of  their  own  accord  to 
bring  to  its  bar. 

It  may  be  perhaps  that  through  the  assembling  at 
recurring  intervals  of  Peace  Congresses  at  The 
Hague,  such  as  those  of  1899  and  1907,  some- 
thing like  a  Parliament  of  the  Nations  will  be 
developed  gradually  in  time;   that  the  present  pro- 


132  A    WORLD   COURT   IN   THE    LIGHT   OP 

visions  for  the  erection  of  International  Tribunals 
ad  hoc  will  be  successfully  elaborated  into  a  Supreme 
Court  of  the  World,  just  as  the  Inter-State  Courts 
provided  for  in  the  ninth  article  of  the  Articles  of 
Confederation  of  the  United  States  of  America  were 
subsequently  developed  into  the  Supreme  Court  of 
the  United  States;  and  also  that  an  international 
executive  with  some  power  at  its  disposal  to  enforce 
its  will,  will  eventually,  by  degrees,  be  born.  In 
that  way,  if  so  much  is  once  successfully  accom- 
plished, the  family  of  Nations  would  be  on  the  high 
road  to  a  loosely  formed  world  confederation. 

That  would  reverse  the  process  in  which  the  period 
of  civilization  immediately  preceding  our  own  period 
of  civilization  reached  in  its  old  age — through  the 
conquest  of  the  then  known  world  by  the  Roman 
Empire,  and  the  consequent  extension  of  the  Pax 
Romana  wherever  the  power  of  Roman  arms 
extended — a  semblance  of  world  peace. 

It  should  not  be  forgotten,  however,  that  after 
the  great  summer  of  the  Roman  civilization  had 
closed,  there  succeeded  a  long  winter  of  more  than 
four  centuries,  before  our  own  summer  of  civiliza- 
tion began.  As  a  number  of  successive  civilizations 
have  been  bom  and  died  in  the  past,  it  is  altogether 
likely  that  our  Heavenly  Father  in  his  own  good 


THE    UNITED   STATES   SUPREME   COURT.  133 

time — when  our  own  period  of  civilization  has  been 
sufficiently  benumbed  by  the  socialistic  status  which 
seems  to  be  growing  up  within  our  own  civilization, 
as  socialism  though  not  known  by  that  name  grew 
towards  the  close  of  the  Roman  period — ^will  pro- 
vide once  more,  as  so  many  times  before,  the  Bar- 
barians to  end  the  present  summer  of  civilization 
and  begin  the  next  great  winter  that  must  precede 
the  birth  of  the  next  period  of  civilization.^^  It  is 
well  in  dealing  with  such  problems  to  remember 
the  wise  words  of  the  Emperor  Marcus  Aurelius, 
d  propos  of  his  signet  ring:  "This,  too,  will  pass 
away." 

So  in  striving  to  maintain  peace  among  the 
Nations  by  the  application  of  international  justice 
to  settle  the  quarrels  of  the  Nations  instead  of  by 
bloody  and  destructive  war,  let  us  remain  practical 
in  our  aims  instead  of  being  led  by  visions  and 
dreams  to  possible  disappointment. 

^*W.  M.  Flinders  Petrie:    The  Revolutions  oj  Civilization,  igii. 


134  A   WORLD   COURT    IN   THE   LIGHT   OP 


PART    IX. 

Both  the  success  and  failure  of  the  Supreme 
Court  of  the  United  States  of  America  in  preventing 
civil  war  within  the  United  States  would  seem  to 
warn  that  too  much  should  not  be  expected  in  the 
matter  of  eliminating  war  between  Nations  by  any 
sudden  change  in  the  present  method  of  creating 
International  Judicial  Tribunals  ad  hoc  into  a  per- 
manent Supreme  Court  of  the  World  composed  of 
a  small  number  of  judges  actually  representing  in 
their  own  persons  only  a  small  number  of  Nations. 
If  such  a  Tribunal  is  really  to  help  in  keeping  by 
its  decisions  peace  among  the  Nations  when  political 
disputes  arise,  something  else  besides  the  setting  up 
of  such  a  Court  must  be  devised  and  developed  by 
the  family  of  Nations.  To  find  that  something 
will  be  no  easy  task. 

In  the  affairs  of  Nations,  as  in  other  spheres  of 
action  on  and  in  our  planet,  the  forces  of  dynamics 
must  never  be  lost  sight  of.  While  all  sovereign 
Nations  are  theoretically  and  juridically  equal,  and 
count  the  one  as  much  as  another  in  deciding  the 
development  of  International  Law  and  the  manner 


THE   UNITED   STATES   SUPREME   COURT.  135 

of  its  interpretation/®  nevertheless,  some,  owing  to 
a  variety  of  reasons,  are  actually  stronger  than 
others  in  shaping  the  politics  of  the  world.  And 
the  relative  strength  of  the  Nations  to  one  another, 
obeying  a  universal  law  of  nature,  are  in  a  con- 
tinuous state  of  flux.  Some  of  the  strong  Powers 
of  a  half  century  ago  have  lost  part  of  their  pre-emi- 
nence, while  others  that  were  then  comparatively 
unheard  of,  have  not  only  gained  in  prestige,  but 
because  of  their  practically  untouched  virgin 
resources,  give  promise  of  rising  still  higher  in  the 
councils  of  the  world.  Also  other  Nations,  which, 
in  past  centuries,  were  strong  Powers  and  had  fallen 
behind  in  the  race  of  the  Nations  because  they  had 
exhausted  their  available  resources  and  failed  to 
adapt  themselves  to  the  change  wrought  in  the  world 
by  the  new  discoveries  of  mankind,  seem  after  lying 
fallow  for  a  time  to  be  rejuvenated  by  a  new  birth. 
While  history  shows  conclusively  that  the  appli- 
cation of  international  justice  as  a  means  of  settling 

^*  Emerich  de  Vattel :  Le  droit  des  gens;  ou,  principes  de  la  loi  natur- 
elle,  Amsterdam,  1775,  Preliminaires,  Sec.  18:  "Una  petitere  publique 
n'est  pas  moins  im  Etat  souverain  que  le  plus  puissant  royaume." 
Chief  Justice  Marshall  in  The  Antelope,  10  Wheaton,  United  States 
Supreme  Court  Reports,  1825,  page  122  said:  "No  principle  of  general 
law  is  more  universally  acknowledged  than  the  perfect  equality  of 
Nations.    Russia  and  Geneva  have  equal  rights." 


136  A    WORLD   COURT   IN   THE    LIGHT   OP 

the  quarrels  of  Nations  has  proved  itself  often  a 
successful  and  precious  instrument  to  avoid  war, 
nevertheless,  ever  since  the  judicial  settlement  of 
the  Alabama  Claims  in  1872  by  the  Geneva  Tribunal, 
it  has  become  more  and  more  clear  with  every  case 
of  difficulty  between  Nations  that  has  been  decided 
since  that  time  either  by  an  International  Court  on 
the  one  hand,  or  by  war  on  the  other  hand,  that  the 
disagreements  which  arise  between  Nations  naturally 
divide  themselves  into  two  great  categories. 

In  the  history  of  the  Supreme  Court  of  the  United 
States  this  same  dual  division  of  the  controversies 
that  might  arise  between  the  member  States  of  the 
United  States  was  observed  at  least  as  early  as  1838. 
In  the  case  of  Rhode  Island  and  Providence  Plan- 
tation vs.  Massachusetts,  Justice  Baldwin  com- 
mentating on  the  differences  that  could  arise  between 
the  member  States  of  the  Union,  said  they  might 
either  be  on  the  one  hand  of  a  civil  or  judicial  nature, 
and  on  the  other  hand,  of  a  political  character.  In  a 
dissenting  opinion  in  the  same  case.  Chief  Justice 
Taney  spoke  of  judicial  and  political  cases,  and 
defined  the  difference  between  the  two  groups  of 
cases  to  which  he  applied  those  terms.  To  desig- 
nate the  two  great  divisions  into  which  the  disputes 
arising  between  Nations  seem  naturally  to  divide, 


THE    UNITED    STATES    SUPREME    COURT. 


137 


the  French  publicists  applied  to  them  respectively 
the  terms  cas  juridiques  and  cas  politiques.  Among 
English  speaking  international  jurisconsults,  West- 
lake  seems  to  have  been  the  first  to  name  these  same 
two  great  classes  of  cases  into  which  international 
difficulties  naturally  divide,  respectively  on  the  one 
hand  legal  or  juridical  cases,  and  on  the  other  hand 
political  cases.  Commenting  on  this  aspect  of 
international  relations,  Westlake,  a  profound  and 
clear  thinker,  has  pointed  out  that,  as  is  proved  by 
the  submission  of  the  Alabama  Claims  case  to  the 
Geneva  Tribunal,  a  great  deal  may  be  hoped  for 
from  the  submission  of  dilTerences  between  Nations 
to  International  Courts  of  Justice.  Then  he  con- 
tinues:*" "I  am  hopeless  of  good  results  from  general 
treaties  for  arbitration,  never  having  seen,  or  been 
able  to  devise,  any  formula  that  can  distinguish 
with  sufficient  precision  the  cases  in  which  it  is  an 
applicable  remedy  from  those  in  which  it  could  not 
be  submitted  to.  We  may  say  that  it  is  suitable  for 
cases  of  a  legal  character,  not  for  those  of  a  political 
one.  And  that  distinction  is  probably  intelligible 
enough  for  practical  pvuposes,  though  not  precise 
enough  for  a  treaty." 

^"Thomas  Balch:     International  Courts  of  Arbitration,   18/4,  6th 
edition,  Philadelphia,  1915,  page  63. 


138  A   WORLD   COURT   IN   THE   LIGHT   OF 

Professor  Oppenheim,  Westlake's  successor  in  the 
WTiewell  chair  of  International  Law  in  Cambridge 
University,  likewise  has  recognized  this  two-fold 
division  into  which  the  cases  of  disputes  between 
Nations  naturally  are  divided.  At  the  same  time  he 
has  pointed  out  that  it  is  often  difficult  to  say  where 
one  set  of  cases  ends  and  the  other  begins.*'  Among 
American  publicists,  Hershey  likewise  has  recognized 
this  two-fold  division.*^  Elsewhere  the  present 
writer  has  maintained  that  the  fundamental  differ- 
entiation between  legal  or  juridical  cases  on  the  one 
hand  and  political  cases  on  the  other  hand  was,  that 
in  the  former  class  of  cases  the  independence  or 
future  political  development  of  Nations  were  not 
involved,  while  in  the  latter  class  they  were 
menaced.^ 

*'  Lassa  Oppenheim:  I tUernalional  Law,  2nd  edition,  London, 
1912,  Volume  II.,  pages  3-4. 

**Amos  S.  Hershey:  The  Essentials  oj  Inlernational  Public  LOla, 
New  York,  191 2,  page  321.  • 

"*  Thomas  Willing  Balch :  Dijfftrends  juridigues  et  poliliques  dans 
les  rapports  des  nations;  Revue  Ginerale  de  Droit  International  Public, 
Paris,  1914,  page  181. — Legal  and  Political  International  Questions 
and  the  recurrence  of  War;  a  paper  read  before  the  American  Philo- 
sophical Society  held  at  Philadelphia  for  the  Advancement  of  Useful 
Knowledge,  April  isth,  1916;  Philadelphia,  1917,  page  5;  reprinted 
from  the  Proceedings  of  the  American  Philosophical  Society. 


THE    UNITED    STATES    SUPREME    COURT.  139 

Humanity  in  its  eager  desire  to  avoid  the  misery- 
entailed  by  war,  hailed  with  delight  the  principle 
of  mediation  as  sanctioned  by  the  Congress  of 
Paris  in  1856,  only  to  realize  in  a  few  years  that 
mediation  would  not  do  away  with  all  wars.  Then 
the  successful  avoidance  of  a  possibility  of  war 
between  the  United  States  and  Great  Britain  by 
the  judicial  settlement  by  the  Geneva  Tribunal  in 
1871-72  of  the  Alabama  Claims,  encouraged  many 
individuals  to  believe  that  by  a  recourse  to  similar 
International  Courts  named  ad  hoc  war  coiild  be 
avoided  more  often  in  the  future  than  it  had  been 
in  the  past.  And  the  success  attending  the  Inter- 
national Courts  that  judged  in  the  Bering  Sea  Fur 
Seal  case  and  other  international  disputes  increased 
the  hope  that  judicial  settlements  would  more  and 
more  do  away  with  war.  Then  the  peoples  of  the 
world  acclaimed  with  enthusiasm  the  call  of  the 
Emperor  Nicholas  the  Second  in  1898  to  a  Con- 
ference of  the  Nations  for  the  purpose  of  reducing 
armaments,  a  result  which  unfortunately  was  not 
accomplished.  But  the  Conference  in  1899  and  its 
successor  in  1907  made  provisions  making  it  more 
easy  to  call  into  existence  International  Tribunals 
appointed  ad  hoc  to  decide  between  the  Nations. 
These  provisions  filled  the  world  with  hope  and 


140  A    WORLD   COURT    IN   THE    LIGHT   OF 

expectancy.  For  up  to  that  time,  most  of  the 
pacifists,  unlike  the  jurists,  had  not  realized  what 
the  Geneva  Tribunal  of  1871-72  and  its  successor, 
the  Paris  Tribunal  of  1893,  had  actually  accom- 
plished in  solving  two  troublesome  international 
disputes  by  judicial  settlements.  To  many  of  these 
people,  the  suggestions  presented  at  the  two  Hague 
Conferences  came  as  someting  almost  new.  For 
they  had  not  understood  that  already,  in  several 
cases.  International  Judicial  Tribunals  had  judged 
between  the  Nations. 

Once  more,  however,  the  Nations  have  been  dis- 
illusionized by  the  present  Great  War  as  to  the 
possibility  of  avoiding  all  war  by  referring  inter- 
national disputes  to  International  Courts  named 
ad  hoc  for  judicial  settlement.  And  partly  as  a 
result  of  this  new  light  which  has  at  last  dawned 
on  the  world,  much  has  been  said  and  heard  since 
the  present  titanic  struggle  began,  about  the 
creation  of  a  Supreme  Court  of  the  Nations  with 
the  intent  of  securing  to  humanity  world  peace. 

In  trying  to  build  a  permanent  International 
Tribunal  after  the  manner  of  the  Supreme  Court  of 
the  United  States  that  shall  judge  successfully  in 
all  cases  between  the  Nations,  we  must  not  think 
that  it  can  be  erected  with  its  necessary  adjuncts  by 


THE    UNITED    STATES    SUPREME    COURT.  141 

one  Conference  of  the  Nations,  or  even  by  one 
generation  of  humanity.  The  establishment  of  such 
a  Court  is  an  ideal  that  the  human  race  may  well 
strive  at  all  times  to  reach.  In  actual  fact  great 
progress  towards  the  realization  of  such  a  Court 
has  been  already  accomplished. 

Indeed,  the  task  before  the  Nations  in  setting 
up  such  a  Court  is  not  unlike  that  presenting  itself 
to  the  mountaineer  who  wishes  to  climb  a  high  but 
apparently  inaccessible  mountain  top.  He  attempts 
to  scale  the  peak  from  all  possible  and  impossible 
sides.  From  each  unsuccessful  attempt  he  learns 
something  about  the  problem  confronting  him. 
He  may  spend  years  before  he  realizes  his  object, 
and  even  in  many  cases  he  has  only  prepared  the 
way  for  a  climber  of  a  younger  generation  to  suc- 
ceed because  of  the  discoveries  made  upon  the 
mountain  itself  by  the  climber  of  the  older  genera- 
tion. Edward  Whymper  attacked  the  Matterhom 
or  Mont  Cervin  for  five  years  before  he  and  Michel 
Croz  found  the  way  to  the  summit.  Other,  higher 
and  more  difficult  peaks,  for  instance  Gaurisankar 
and  Kinchinjunga,  still  baflfle  all  attempts  to  reach 
their  summits  and  seemingly  give  no  promise  that 
man  will  on  his  own  feet  ever  attain  their  snow 
clad  summits. 


142  A    WORLD   COURT    IN   THE    LIGHT   OF 

The  practical  development  of  mountaineering, 
since  Doctor  Paccard  of  Chamonix  found  the  way 
to  the  summit  of  Mont  Blanc  in  1787,*^  has  devel- 
oped a  set  of  primary  rules  which  every  first  rate 
climber  knows  must  be  observed  if  he  wishes  to 
succeed. 

The  first  and  most  important  of  these  rules  is 
to  go  slowly.  As  the  mountain  climbers  of  Italy 
so  truly  say: 

Chi  va  piano,  va  sano, 

Chi  va  sano,  va  lontano; 
a  truth  embodied  also  in  the  well  known  maxim  of 
the  French  mountaineers: 

Plus  doucemenl  on  monte, 

Plus  vile  on  arrive  an  sommct. 
Or  as  an  Italian  guide  once  expressed  it  to  the  writer: 

Chi  va  forte,  va  a  la  morte. 
An  apt  instance  of  the  fact  that  political  and 
social  developments  can  be  accomplished  only 
gradually  is  shown  by  the  slow  but  steady  forma- 
tion of  that  political  and  social  organism  which 
to-day  is  the  virile  French  Nation.  One  of  the 
early  Kings  of  Paris  who  wished  to  extend  his 
territorial  domains  and   was  actually   thinking  of 

**  Douglas  W.  Freshfield:  The  Growth  of  a  Ugend:  Paccard  v. 
BaJmal:  Alpine  Journal,  London,  1913,  Volume  XXVII.,  page  aoj. 


THE    UNITED    STATES    SUPREME    COURT.  143 

capturing  and  annexing  by  force  of  arms  the 
neighboring  town  of  Saint  Denis,  a  short  distance 
to  the  north  of  Paris,  took  counsel  with  his  leading 
men  as  to  the  advisability  of  risking  such  a  step. 
One  of  his  counsellors  in  commenting  on  the  prop- 
osition, said:  Cest  le  premier  pas  qui  coute.  With 
the  addition  of  that  little  burg  to  the  landed  pos- 
sessions of  the  feudal  house  that  rtiled  in  early  Paris, 
began  that  territorial  growth  in  the  He  de  France, 
round  Paris  as  the  kernel,  which  resulted  in  the  course 
of  centuries  in  the  creation  of  the  French  Nation. 

At  the  end  of  the  present  Great  War,  the  family 
of  Nations,  realizing  the  immense  losses  caused  by 
the  conflict,  perhaps  will  feel  inclined  to  attempt, 
in  order  to  avoid  another  such  cataclysm,  to  estab- 
lish at  once  through  a  Third  Hague  Peace  Con- 
ference some  sort  of  nebulous  world  organization 
whose  aim  it  will  be  to  prevent  the  outbreak  of 
war  in  the  future.  If  such  an  attempt  is  made, 
the  plan  to  have  any  success  at  all,  must  be  based 
on  the  idea  of  doing  justice  to  all,  and  not,  as  the 
famous  Grand  dessein  of  Henri  Quatre,  of  placing 
one  group  of  Nations  in  control  rather  than  another, 
no  matter  with  how  clever  a  subterfuge  the  attempt 
to  gain  power  or  leadership  for  one  Nation  or  group 
of  Nations  may  be  at  first  disguised. 


144  A    WORLD   COURT   IN   THE    LIGHT   OP 

So  long  as  questions  may  arise  involving  in  their 
solution  the  independence  and  future  political  power 
of  Nations,  one  of  the  best  ways  to  work  for  the 
maintenance  of  peace  among  the  Nations  would 
seem  to  be,  while  perfecting  so  far  as  possible  the 
constitution  of  the  present  International  Tribunals 
named  ad  hoc,  to  seek  to  eliminate  so  far  as  possible 
the  probable  causes  for  war.  Thus,  for  example, 
the  United  States  of  America  could  give  in  the 
Alaskan  lisiere  to  the  Dominion  of  Canada  in  ex- 
change for  a  little  land  somewhere  else,  say  the  islands 
of  Campobello  and  Grand  Manan,  two  narrow 
strips  of  land  of  sufficient  width  to  allow  the  building 
of  two  railroads  from  the  hinterland  across  the 
lisibre  to  two  of  the  fiords  that  bulge  into  the  lisibre 
with  sufficient  land  on  each  fiord  to  allow  two  ports 
to  be  established.  In  that  way  merchandise  destined 
for  the  hinterland  of  the  Alaskan  lisiere  could  be 
discharged  at  those  ports  and  shipped  into  or  out 
of  the  Canadian  territory  without  being  subjected  in 
any  way  to  or  delayed  by  the  tariff  duties  of  the 
United  States.*"  Then  in  order  to  send  goods  by 
way  of  the  Pacific  Ocean  to  the  Yukon  district  of 

**  Thomas  Willing  Balch:  La  Fronlihre  Alasko-CanaJienne,  Revue 
de  Droit  International  ct  de  Legislation  Comparie,  Brussels,  1902, 
pages  5-23:    The  Alaska  Frontier,  Philadelphia,  1903. 


THE    UNITED    STATES    SUPREME    COURT.  145 

Canada,  it  would  no  longer  be  necessary,  in  order  to 
avoid  the  payment  of  American  customs  duties, 
to  send  the  merchandise  by  way  of  Port  Simpson. 
It  could  be  sent  via  some  port  more  to  the  north, 
like  Skagway,  for  instance,  and  directly  over  the 
White  Pass  to  the  Yukon  Valley. 

Also  the  Law  of  Neutrality  could  be  revised  in  the 
interest  on  the  one  hand  of  curtailing  the  area  of 
war  once  it  had  broken  out,  and  on  the  other  hand  of 
shortening  so  far  as  possible  its  duration.  Thus  if 
all  the  members  of  the  family  of  Nations  gave  their 
adhesion  to  a  more  exact  definition  than  now  exists 
of  the  rights  of  neutrals  as  well  as  their  duties 
vis-h-vis  of  belligerents,  the  danger  of  futvu^e  wars 
extending  the  area  of  conflagrations  beyond  the 
limits  of  the  original  contestants  would  be  lessened. 
A  vexatious  and  difficult  question  touching  the  inter- 
course and  well  being  of  the  members  of  the  family 
of  Nations  is  how  to  insure  the  freedom  of  the  seas 
for  peaceful  commerce  in  times  of  war  as  well  as  in 
times  of  peace.  Can  any  plan  be  devised  by  which 
all  Nations  at  all  times  will  feel  secure  in  their  over- 
sea trade?  If  that  could  be  successfully  accom- 
plished, a  great  stroke  for  the  preservation  of  inter- 
national peace  wovild  have  been  struck. 

Above  all,  as  was  suggested  many  times  and  in 


146  A    WORLD   COURT   IN  THE    LIGHT   OP 

many  quarters  before  the  Great  War  began,  and  as 
has  been  repeated  recently  by  the  Pope,  Benedict 
the  Fifteenth,  a  real  effort  should  be  made  by  the 
Nations  to  reduce  their  armaments  upon  the  basis 
of  a  quid  pro  quo.  That  may  be  looked  upon  as  a 
sine  qua  non  of  any  real  attempt  to  do  away  with  war. 

It  is  possible  that  the  undoubtedly  increasing 
growing  desire  during  recent  years  for  international 
peace  among  mankind,  may  cause  Nations  who  are 
more  or  less  contiguous  and  neighbors  to  one  another, 
even  though  speaking  different  languages,  to  draw, 
owing  to  the  fear  of  attack  from  other  quarters  of  the 
world,  closer  together  in  some  manner  so  as  to  avoid 
war  among  themselves  and  so  the  better  be  able 
to  resist  attack  from  some  other  section  of  the 
planet. 

For  instance,  the  Swiss  Cantons,  though  speaking 
three  different  languages,  French,  German  and 
Italian,  were  drawn  gradually  together  for  mutual 
defence,  owing  to  the  fear  of  aggression  by  the 
powerful  States  that  had  grown  up  all  about  them. 

A  test  of  the  practicability  of  establishing  a  World 
Court  would  be  for  allied  Nations,  as  Britain, 
France  and  Italy,  for  instance,  being  willing  to  es- 
tablish a  Supreme  Court  that  should  judge  all 
questions,   political  as  well  as  legal,   without  ex- 


THE    UNITED    STATES    SUPREME    COURT.  147 

ception,  arising  between  themselves.  If  Nations 
that  are  allies  in  war  are  not  willing  to  agree  on  such 
a  Cotirt  for  themselves,  how  can  all  the  Nations  of 
the  world  be  expected  to  agree  on  a  Covirt  which 
shall  judge  without  reserve  all  questions  arising  be- 
tween them? 

Perhaps  the  world  in  time  may  become  divided 
into  several  distinct  groups  of  Nations  based  upon 
geographical  reasons.  And  the  members  of  each 
group,  because  of  the  fear  of  attack  of  some  other 
group  also  formed  on  geographical  alignment,  may 
seek  to  minimize  and  eliminate  the  chances  and 
causes  of  war  possibly  arising  between  the  Nations 
belonging  to  the  same  group.  Once  such  a  stage 
in  human  polity  has  been  reached,  perhaps  it  may 
be  possible  in  the  future,  to  arrange  for  some  scheme 
of  world  wide  organization  that  will  tend  gradually 
to  reduce  the  recurrences  of  war  to  the  minimum. 


148  A    WORLD   COURT    IN   THE    LIGHT   OF 


PART    X. 

The  great  difficulty  in  enforcing  peace  throughout 
all  the  world,  however,  is  that  there  is  no  force  out- 
side of  the  world  to  drive  the  peoples  of  the  earth  to 
remain  united  in  order  to  avoid  war  among  them- 
selves. And  this  is  true  whether  the  peoples  be 
organized  as  separate  Nations  as  at  present,  or 
according  to  any  other  scheme  that  may  be  devised. 
If  the  peoples  of  the  world  are  once  united  into  a 
world  confederation,  or  a  single  world  State,  in  the 
absence  of  any  outside  force  to  make  it  their  mutual 
interest  to  hold  together  for  protection  against 
outside  aggression,  the  desire  of  the  peoples  in 
various  parts  of  the  earth  to  gain  more  than  their 
fair  share  of  the  fruits  of  the  earth  will,  judging 
by  the  past  history  of  humanity,  result  in  war. 
That  is  the  weak  point  in  all  plans  for  maintaining 
world  peace.  All  Nations,  no  matter  with  what 
grandiloquent  and  honeyed  phrases  their  aims  may 
be  expressed,  are  essentially  selfish  in  their  foreign 
policy.  Nations  do  not  go  to  war  to  help  another 
Nation  out  of  regard  for  the  latter.  Nations  go  to 
war  solely  for  their  own  interests.  So  it  has  been  in 
the  past,  and  so  it  will  be  in  the  future.     Alliances 


THE    UNITED    STATES    SUPREME    COURT.  149 

between  Nations  are  formed  upon  mutual  interests. 
Thus  early  in  the  present  century,  Great  Britain 
and  France  were  driven  through  fear  of  the  growing 
power  of  Germany  into  an  alliance  that  was  patent 
to  all  the  world.  And  under  the  stress  of  the  menace 
to  their  respective  vast  colonial  empires  resulting 
from  the  growing  power  of  Germany  and  the  desire 
of  Germany  for  colonies,  France  and  Great  Britain, 
upon  the  basis  of  give  and  take,  rounded  off,  so  far 
as  they  could,  the  sharp  corners  that  existed  between 
them.  Thus,  for  example,  France  recognized  Great 
Britain's  occupancy  of  Egypt,  while  Great  Britain 
supported  the  claims  of  France  to  the  possession 
of  Morocco.  And  yet  for  centuries  before  that 
France  and  Great  Britain  had  been  constantly 
opposed  to  one  another,  and  had  fought  many  long 
and  bloody  wars.  But  the  danger  threatened  by 
another  power  to  the  possessions  of  both  produced 
the  entente  cordiale. 

As  one  of  the  greatest  of  living  international 
jurisconsults,  Professor  John  Bassett  Moore,  has 
aptly  said,  the  possibilities  to  use  force  to  maintain 
peace  among  the  Nations  depends  in  part  upon 
public  opinion  or  sentiment.  In  a  letter  addressed 
to  the  present  writer  on  February  9th,  19 17,  the 
distinguished   professor   of    International    Laws   of 


150  A    WORLD   COURT    IN    THE    LIGHT    OP 

Columbia    University    said:"     "I    am    inclined    to 
think  that  the  possibilities  of  force  in  maintaining 
peace  are  often  exaggerated  by  the  omission  of  one 
fundamental  consideration — namely,  that  the  avail- 
ability of  force  in  the  long  run  depends  on  opinion 
or  sentiment.     During  the  past  century  there  have 
been   almost   innumerable   civil   wars,   one   of   the 
greatest  being  that  which  for  four  years  swept  over 
the  United   States.     And  yet  we  had  a  national 
government,   and   under  it   an   administration   far 
more  centralized  than   any  one  now  proposes  to 
estabUsh  over  nations.     But,  when  the  sentiment 
of  the  country  divided,  its  force  likewise  divided, 
and  war  naturally  resulted.     The  fundamental  pro- 
blem therefore  is  how  to  preserve  unity  of  sentiment. 
Let  no  man  think  that  our  country  could  not  be 
divided  again  if  one  section  should  seek  ruthlessly 
to  impose  its  will  upon  the  other  in  a  matter  regarded 
by  the  latter  as  politically  or  socially  vital;   and  in 
such   event,    even   though   one   side   should   again 
subdue  the  other,   there  would  nevertheless  have 
been  war.     Let  us  also  remember  that  beyond  a 
certain  point  the  suppression  of  sentiment  by  force 
is  tyranny." 

*'  This  extract  is  printed  with  the  approval  of  Professor  Moore. 


THE    UNITED    STATES    SUPREME    COURT.  151 

The  illximination  cast  upon  the  evolution  of  inter- 
national justice  by  the  way  in  which  the  Supreme 
Court  of  the  United  States  was  evolved ;  the  remark- 
able success  on  the  one  hand  of  that  great  Court 
in  deciding  between  two  individual  member  States 
of  the  United  States;  and  the  failure  on  the  other 
hand  of  that  same  high  Tribunal  in  attempting  to 
decide  between  all  the  member  States  of  the  North 
American  Union  when  they  were  divided  into  two 
fairly  and  evenly  balanced  groups  with  diametrically 
opposed  interests  over  the  slavery  question — give 
warning  that  the  peoples  shotdd  not  be  fooled  into 
believing  that  by  the  hasty  creation,  after  the 
present  Great  War  is  ended,  of  a  Supreme  Court 
of  the  Nations  all  war  will  be  ended.  That  would 
be  to  mislead  the  Nations  with  false  hopes  and 
expectations.  For  the  existing  international  judicial 
machinery  is  not  to-day  the  weak  point  among  the 
forces  and  institutions  forged  by  the  human  race 
to  deliver  itself  from  the  curse  of  war.  The  crucial 
problem  with  which  the  world  must  wrestle  in 
order  to  avoid  war  is  more  complex  than  the  estab- 
lishment of  a  Supreme  Coiut  of  the  Nations. 

The  real  underlying  problem  that  humanity  faces 
in  seeking  to  eliminate  war  is  that  there  are  two 
sets  of  primary  questions  constantly  arising  between 


152  A    WORLD   COURT   IN   THE    LIGHT   OP 

two  or  more  agglomerations  of  peoples.  The  one 
set  of  such  questions,  no  matter  how  they  may  be 
decided  in  favor  of  one  side  or  the  other,  do  not 
seriously  threaten  the  well-being  or  prosperity  of 
either  group  of  peoples  who  are  interested  in  any 
particular  question.  Those  are  legal  questions,  for 
they  may  be  settled  by  jural  proceedings  upon  the 
basis  of  justice,  since  the  life  and  future  well-being 
in  the  world  of  neither  group  of  people  is  really  at 
stake,  whichever  way  those  questions  may  be 
decided.  The  second  class  of  questions,  however, 
differ  radically  from  the  first  or  legal  group  of 
differences.  For  upon  the  successfvil  solution  one 
way  or  the  other  of  the  questions  belonging  to  the 
second  class,  there  does  depend  the  future  well- 
being  of  one  or  more  of  the  agglomerations  or 
groups  of  people  actually  interested  in  the  solution 
of  such  questions  and  the  resulting  power  and 
ability  of  such  groups  to  obtain  the  fruits  of  the 
earth.  Such  questions,  which  are  political  in  their 
nature,  can  only  be  solved  by  force  or  power,  which 
in  the  last  analysis  means  a  resort  to  war. 

A  practical  way,  though,  to  aid  in  the  main- 
tenance of  peace  in  the  world,  would  be  for  future 
Hague  Peace  Conferences  to  add  to  their  efforts  at 
legislation,  the  assumption  of  the  function  of  con- 


THE    UNITED    STATES    SUPREME    COURT.  153 

ciliation.  The  First  and  the  Second  Hague  Peace 
Conferences  in  their  efforts  to  change  the  Law 
between  Nations  in  the  interest  of  peace  and 
harmony  in  the  world,  assixmed  in  a  measure  the 
function  of  a  world  legislative  body.  The  Third 
and  subsequent  Conferences  could  take  up  also, 
from  time  to  time,  the  task  of  trying  to  conciliate 
so  far  as  possible  the  clashing  interests  of  rival 
Nations.  In  that  manner  not  only  would  a  solu- 
tion by  an  appeal  to  war  of  some  vexatious  ques- 
tions be  avoided,  but  also  probably  through  such 
conciliation  as  well  as  the  development  of  the 
Law  between  Nations  by  the  legislative  activities 
of  future  Peace  Conferences  at  The  Hague,  some 
of  the  questions  arising  between  Nations  which 
to-day  belong  to  the  reakn  of  political  questions, 
could  be  transferred  by  degrees  to  the  domain  of 
legal  questions. 

For  instance  in  the  past  the  use  that  could  and 
could  not  be  made  of  neutral  territory  to  aid  belhg- 
erents  fell  within  the  domain  of  political  questions. 
Since  the  time,  however,  when  Jefferson  inter- 
preted Washington's  neutrality  proclamation  of 
1793  in  a  series  of  important  state  letters,  the  use 
that  may  and  may  not  properly  be  made  of  neutral 
territory   for   the   advantage    of   belligerents,    has 


154  A    WORLD   COURT    IN   THE    LIGHT   OF 

passed  by  degrees  largely  into  the  area  of  legal 
questions.  For  whereas  before  Washington's  proc- 
lamation was  issued,  the  status  of  what  could  and 
could  not  properly  be  done  to  aid  belligerents,  was 
in  a  state  of  flux,  since  then  the  rights  and  duties 
of  neutrals  in  the  premises  have  become  in  large 
measure  defined  by  the  general  agreement  of  the 
members  of  the  family  of  Nations. 

In  the  development  of  future  Hague  Peace  Con- 
ferences along  the  line  of  conciliating  the  claims  of 
rival  powers,  there  is  hope  that  progress  in  lessen- 
ing the  chances  and  occurrences  for  the  outbreak 
of  war  between  two  or  more  agglomerations  of  large 
masses  of  humanity  could  be  made  and  so  increase 
gradually  the  substitution  of  international  justice 
for  international  war.  In  that  way  there  would 
seem  to  be  a  promise  of  something  substantial  for 
the  promotion  and  preservation  of  peace,  and  for 
warding  off  from  humanity  the  horrors  and  misery 
that  accompany  war. 

Instead  of  trying  to  end  war  for  all  time  in  the 
future  by  one  stroke  of  magic  by  merely  urging  the 
erection  of  a  Supreme  Court  of  the  World  and  a 
League  of  Nations  to  support  it,  the  best  friends  of 
peace  and  the  most  resolute  opponents  of  war  are 
those  who  will  teach  and  labor  to  curtail  by  slow 


THE    UNITED    STATES    SUPREME    COURT.  155 

degrees  the  occurrences  producing  war.  They  will 
make  every  effort  to  transfer  gradually  as  many  as 
possible  of  the  problems  arising  between  Nations 
which  to-day  are  political  questions  into  the  realm 
of  legal  questions.  For  the  whole  history  of  human- 
ity teaches  that  those  who  wish  to  make  wars  less 
frequent  and  peace  more  durable  must  be  content 
to  proceed  slowly  and  to  attain  their  aims  step  by 
step  and  not  try  to  encompass  them  at  one  bound. 
And  above  all  the  study  of  the  career  of  the  United 
States  Supreme  Court  teaches  that  there  are  possi- 
bly limits  in  securing  world  peace  beyond  which 
humanity  may  not  hope  to  go. 


156  A    WORLD  COURT   IN   THE    LIGHT   OF 


EPILOGUE. 

When  the  present  writer  began  shortly  before 
the  breaking  out  of  the  Great  War  to  study  the 
record  of  the  Supreme  Court  of  the  United  States, 
it  was  with  the  view  of  advancing  an  argument  in 
favor  of  the  early  creation  of  a  Supreme  Court  of 
the  Nations  as  the  best  and  easiest  means  of  insur- 
ing peace  between  the  members  of  the  family  of 
Nations.  As  the  study  advanced,  however,  the 
writer  was  forced  gradually  to  realize  that  there 
were  limitations  to  the  possibilities  of  securing 
world  peace  by  the  mere  establishment  of  such  a 
Tribunal. 

Nevertheless,  the  author  believes  that  much  can 
be  done  to  make  the  recurrences  of  war  less  fre- 
quent. With  that  object  in  view  he  submits  the 
present  study  in  all  humility  to  the  jurists  of  the 
world  with  the  hope  that  it  may  prove  of  some 
service  in  helping  the  efforts  of  humanity  to 
render  wars  less  frequent  and  peace  more  durable. 

THE  AUTHOR. 

Philadelphia,  November,  19 17. 


INDEX. 


PAGE 

Ableman,    Stephen    V.,    vs.    Sherman    M.    Booth  and   the  United 

States  vs.  Sherman  M.  Booth 66 

Active,  sloop 59 

Adams,  John 20 

Aiguesmortes 2 

Alabama  Claims 3,  4,  45,  86,  97,  98,  113,  136,  137,  139 

Alabama,  vs.  Georgia 46 

Alaskan  Boimdary 50 

Alaskan  lisiere 144 

Anna,   The 50 

Arizona 72 

Arnold,  Welcome 24,  26 

Articles  of  Confederation 7,  21,  22,  29,  30,  38 

Ashley  of  Ohio 76 

Aurelius,  Emperor  Marcus 133 

Balch,  Thomas 137 

Balch,  Thomas  Willing 85,  97,  130,  138,  144 

Baldwin,  Justice 39,  42,  136 

Baltimore,  Lord 11,  12 

Belligerents 153,  154 

Benedict  the  Fifteenth 146 

Berard,  Victor 85 

Bering  Sea  Fur  Seal  Case 4,  86-87,  I03f  ii3.  '39 

Blair,  Justice 34 

Blanc,  Mont 142 

Booth,  Sherman  M 66-68 

Bradford,  William 23,  24 

Brearly,  David 24,  26 

Britain,  Great 2,  7,  21,  103,  104,  105,  139,  146 

Britain,  Great,  and  Germany 122 

Brown,  Philip  Marshall 102 

Buchanan,  James 68,  76,  78,  107-109 


158  INDEX. 

rACx 
California 71,  72 

Campbell,  Justice 106 

Campbell  vs.  Hall II 

Campobello  and  Grand  Manan  Islands 144 

Canada 141,  145 

Carson,  Hampton  L 59,  61,  62 

Casablanca  Affair 87 

Cos  juridigues 137 

Cos  poliltques 137 

Catron,  Justice 106 

Cervin,  Mont 141 

Charles  the  Second 11,  14,  16,  18 

Chase,  Samuel 20 

Chinese  Empire I 

Chisholm  vs.  Georgia 33,  35,  36 

Civil  War,  1861-1865 81-83,   >2« 

Clay,  Henry 72 

Columbia  University 150 

Compromise  of  1850 71 

Compromises  in  the  Constitution 68,  91 

Connecticut 7,  8,  10,  13,  15,  16,  18,  19,  21-28,  85 

Continental  Congress 19,  21,  23,  60,  61 

Corwin,  Edward  S 109,   1 10 

Coucy-lc-Chiteau i 

Cour  de  Cassation  of  France 105,   1 13 

Cromwell,  Oliver 85 

Croz,  Michel 141 

Curtis,  George  Ticknor 77 

Curtis,  Justice  Benjamin  Robbins 77,  78,   108,  109 

Cushing,  Justice 34 

Daniel,  Justice 106 

Delaware 13 

Dickinson,  John 27,  32 

Dred  Scott  case 68,73-80,83,  loi,  106-109,  "*.  "3.  >I7.  "9.  123 


INDEX.  159 

PAGE 

Dreyfus  case 112 

Dyer,  Colonel 16,  23,  25 

Egle,  William  H II,   16,   17,  25 

Eleventh  Amendment  to  the  Federal  Constitution 35,  52 

Entente  cordiale 149 

Epilogue 156 

Federal  Constitution 35-37 

Federal  Convention 13,  30,  32 

Fillmore,  President 109 

Five  Nations,  the 14 

Ford,  Worthington  C 78 

France 12,  85,  95,  142,  143,  146,  149 

Freedom  of  the  seas 145 

Fremont,  John  C 78 

French  and  Teutons 122 

Freshfield,  Douglas  W 142 

Fuller,  Chief  Justice 49.  5° 

Gaurisankar 141 

Geneva  Tribunal 3,  4,  45,  86,  87,  98,  103,  136,  137,  139,  140 

Georgia 33-35 

Georgia  vs.  Tennessee  Copper  Company 55 

Germany 2,  149 

Germany  and  Great  Britain 122 

Good  offices 3 

Grand  dessein I43 

Great  War,  the 102,  121,  140,  143,  146,  151,  156 

Greek  City-States 85 

Green,  Nathaniel 24 

Grier,  Justice 106,  108 

Griffin,  Cyrus 24,  26,  27 

Hague  Courts,  the 6,  87,  102-105,  113,   122,  131 

Hague  Peace  Conference,  First,  1899 3,  4,  87,  88,  131,  139,  153 


160  INDEX. 

PACE 

Hague  Peace  Conference,  Second,  1907. ...  4,  87,  88,  99,  100,  113,  123, 

i»9.  131.  139,  153 

Hague  Peace  Conference,  Third 143 

Hague  Peace  Conferences  and  Conciliation 153,  154 

Hamburg,  Free  City  of 85 

Hardwickc,  Lord  Chancellor 13 

Hazard,  Ebenezer 10,   16 

Hazard 41 

Henri  Quatre 143 

Hershey,  Amos  S 97,  138 

Higgins,  A.  Poarce 4 

Hoadly,  Charles  J 10,   16 

Hollingsworth  et  al.  vs.  Virginia 35 

Hopkins,  Stephen 31 

Houston,  WiUiam  Churchill 34,  36 

Illinois 65 

Indiana 65 

Indiana  vs.  Kentucky 47 

Instructions  to  American  delegation  at  the  Second  Hague  Peace 

Conference  concerning  a  proposed  World  Court 99-101 

International    Courts    of    Justice 4,  86,  87,  97,  99,   102,  114,   115, 

119,  128,   132,  134,   137,   139,  144 

International  Law,  Private 56 

International  Law,  Public 56,  134,  134,  153 

Inter-State  Tribunals  in  American  Colonies 89,  132 

Jackson,  Andrew 65 

Jay,  Chief  Justice 34.  36,  86 

Jefferson,  Thomas 20,  1 53 

Johnson,  Dr.  William  Samuel 16 

Johnson,  William  Samuel 33,  35 

Jones,  Joseph 24 

Judicial  settlements,  international 84-86 


INDEX.  161 

PAGE 

Kansas  vs.  Colorado 53 

Keith,  Charles  Penrose 1 1 

Kelby,  George 8 

Kinchinjunga 14' 

King  in  Council lO,  1 1-13,  17-19,  22 

Kings  of  Paris 142 

Kinsey,  James 20 

Lake  dwellers  of  Switzerland i 

League  of  Nations 154 

Legal  Questions 97.  136-138,  152,  I55 

Limes  Imperii  Romanii i 

Linn,  John  B 11 

Louisiana  vs.  Mississippi 49 

Louisiana  purchase 70,  72,  74 

Louisiana  vs.  Texas 55-56 

Mansfield,  Lord 11,  13 

Marbury  vs.  Madison 36 

Marshall,  John,  Chief  Justice 36,  38,  40,  63,  94,  135 

Maryland 11,  13 

Maryland  vs.  West  Virginia 51 

Massachusetts 13,  41-43 

Massachusetts  vs.  New  York 29 

Matterhom 141 

McLean,  Justice 44,  77,  78,  108 

McMaster,  John  Bach 72,  75 

Mediation 3 

Mexico 71 

Middle  Ages 85 

Missouri 71,  72 

Missouri  Compromise 71,  77,  79-81,  106-109 

Missouri  vs.  Illinois 54 

Missouri  vs.  Iowa 46 

Missouri  vs.  Kansas 50 


162  INDEX. 

rAOB 

Missouri  vs.  Kentucky 47 

Missouri  vs.  Nebraska 48 

Montesquieu 31 

Moore,  John  Bassett 76,  78,  107-108,  1 18,  130,  149 

Municipal  Courts 6 

Municipal  Tribunals 1 14,  128,  131 

Napoleon 70 

Nelson,  Justice  Samuel 108-109 

Nelson,  Thomas 31 

Netherland,  New 7-9,  85 

Netherland,  United 3,  9 

Neutrality 145,  153-154 

New  Hampshire  vs.  Louisiana 51 

New  Haven 7-9,  85 

New  Jersey 15,  18-19,  39-40 

New  Jersey  vs.  New  York 39-40,  61 

New  Mexico 71-72 

New  York 9,  14-15,  18-19,  28,  33,  39-40 

New  York  vs.  Connecticut 39 

Nicholas  the  Second 3,  139 

Ninth  article  of  the  Articles  of  Confederation 27,  88-90 

North  Atlantic  Fisheries  Case 87,  103-104 

Ohio,  State  of,  against  Territory  of  Michigan 64,  65 

Olmstcad,  Gideon 59,  64 

Oppenheim,  Lassa 97,  138 

Order  in  Council 13 

Osbom,  Henry 23 

Paccard,  Doctor 142 

Paris,  Congress  of,  1856 139 

Paris  Tribunal,  1893 140 

Parliament  of  Nations 131 

Pauncefote,  Sir  Julian II8 


INDEX.  163 

PAGE 

Penn  vs.  Lord  Baltimore 12-13 

Perm,  William 11,  14-16,  18 

Pemis,  the 12-13 

Pennsylvania 11,  13-16,  18-20,  22-27,  59-63i  95i  106.  129 

Pennsylvania  vs.  Connecticut 16,  29 

Peters,  Judge 62-64 

Petrie,  W.  M.  Flinders 118 

Philadelphia 16-17,  28,  30,  62-63,  78 

Pierrefonds I 

Political  Questions 136-138,  152 

PoUtiques,  differends 97 

Princeton  University 102,  109 

Raeder,  A 85 

Randolph,  Edmund  Jennings 34 

Reed,  Joseph 23-24 

Rhode  Island 41-42 

Rhode  Island  and  Providence  Plantations  vs.  Massachusetts, 

40-41.  45.  83,  136 

Rhodes,  James  Ford 72,  109 

Rittenhouse,  David 61,  63 

Rittenhouse,  Fort 63 

Rogers,  Judge  Henry  Wade 27 

Roman  Empire i,  132,  133 

Root,  Jesse 23,  25 

Ross,  George 20,  60-61 

Rutledge,  John 20,  24,  32 

Salisbury,  Marquis  of.  Premier  of  Great  Britain 118 

San  Juan  Frontier 50 

Schlesinger,  Arthur  Meier 64 

Scott,  Dred,  case,  see  Dred  Scott. 

Sergeant,  Jonathan  Dickinson 23-24 

Sherman,  Roger 18,  20 

Sixteenth  Amendment  to  the  Federal  Constitution 95 


164  INDEX. 

PACE 

Slavery  in  the  United  States.   69-73,  78,  83,  106-107,  109,   iii,  130-131 

Slaves  and  Teutons 122 

Smith,  Rev.  William 17 

Soule,  Anna  May 64 

South  Carolina 20,  24,  33,  35 

South  Carolina  vs.  Georgia 29 

South  Carolina  vs.  Georgia 56 

South  Dakota  vs.  South  Carolina 53 

Stowell,  Lord 50 

Strong,  Jedediah 16 

Stuyvesant,  Peter 8 

Summers  and  winters  of  civilization 132 

Supreme  Court  of  the  United  States 4-6,    31-33,    35-36,    38-41, 

45.  50.  55.  57-58. 67-68.  81-84, 92. 94.  96. 99-101,  105-106.  109-1 12, 
115,  117,  119-120,  124,  129-130.  136.  140.  151,  155-156. 
Supreme  Court  of  the  World,  see  World  Court. 
Swiss  Cantons 145 

Taney.  Roger  Brooke 43,  76,  80,  94,  106-107,  136 

Teutons  and  French 122 

Teutons  and  Slaves 133 

Teitas 71 

Treaty  of  Paris,  1783 90 

Treaty  of  Westminster.  1655 85 

Trenton  Inter-State  Court 25,  26-.29.  87.  90,  120 

Tyler,  Samuel 76 

United  States 62 

Vattel.  Emerich  de 48,  135 

Venezuela  Boundary  case 103.  1 13 

Venice 2 

Virginia 33.  93 

Virginia  vs.  Tennessee 48 

Virginia  vs.  West  Virginia 56.  57 


INDEX.  165 

PAGE 

Washington,  George 21,  153-154 

Washington  vs.  Oregon 50 

Way,  W.  V 64 

Wayne,  Justice 106 

Webster,  Daniel 41,   109 

Westermann,  W.  L 85 

Westlake,  John 97,  137-138 

Wharton,  Francis 48 

Whipple,  William 24 

Whymper,  Edward 141 

Willing,  Thomas 20 

Wilson,  James 23-24,  34 

Wilson,  President 122 

Wisconsin 65,  67-68 

Witherspoon,  John 61 

World  Court 4-6,   88,  96-101,   113-114,   117,   119-124,   128-134, 

140-141,  146,  151,  154 
Wyoming  Valley 14,  18-19,  21,  86,  90 


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